4. Parts 5 and 6 of the Position Paper - Technological Protection Measures and Electronic Rights Management Information
Submission: The Committee's view is based on the following key propositions:
- Copyright in the digital environment should be addressed in a technology neutral way. To the extent possible, copyright owners and users in the digital environment should not have greater or lesser rights than they do in the analogue world.
- In particular the permitted uses, such as fair dealing must continue to survive in the digital environment.
- It must be remembered that America accords TPMs strong protection in the Digital Millennium Copyright Act 1998. However, one of the key reasons for that is that the United States is the largest net exporter of copyright works in the world, and rights holders have huge lobbying power. In contrast, New Zealand is a net importer of copyright works, and our legislation should be most conscious of ensuring that the rights of copyright users are not reduced or eviscerated in the digital environment.
- Where there is uncertainty as to where the balance between the rights and interests of copyright owners and users should be struck (because, for example, of a lack of data on the extent to which TPMs are or will be used to "lock-up" works), the legislation should favour users, on the basis that it can be reviewed in light of experience and available data. Experience shows that the rights of copyright owners can be increased when the legislature considers that appropriate - as shown by the many extensions to the copyright term in the United States. We are not confident that the converse would apply.
- Where use of a circumvention device results in unauthorised copying that use will be within the ambit of the main prohibitions on copying which are contained in the Copyright Act. Therefore, section 226, as amended, should continue to focus on circumvention devices themselves, not the act of circumvention.
- TPMs which prevent access are best dealt with by contractual measures, akin to a cinema charging a ticket price, or a music shop requiring payment for a CD. The focus of section 226, as amended, should continue to be on copy-control measures. That term, however, needs to be defined to express this and prevent a judicial outcome such as Sony Computer Entertainment v Owen.
- Permitted uses, including fair dealing should be expressly preserved. To that end, the legislation should expressly provide that it is not a breach of section 226, as amended, to deal in a device used to circumvent copy-protection where the purpose of the dealing is to enable a permitted use, of any of the types contained in Part III of the Act. To prevent dealing in circumvention devices per se would be to create, by legislation, a scenario which the Court refused to uphold in CBS v Amstrad - that is making producers of twin-deck taped recorders liable for secondary copyright infringement simply because they had produced machines that could be used to infringe copyright.
Against this background, we now comment on the particular issues raised in the position paper in relation to TPMs and ERMIs.
4.1 TPMs
4.1.1 Issue: Should the scope of section 226 extend to access control as well as copy control technologies?
Submission: For the reasons at F above, we submit not. We agree with MED's proposal that the focus of section 226 continue to be on copy control and not access control. We submit that the position could usefully be further clarified by amending the Act to make it clear that transient copying, as commonly occurs in the digital environment, is not an infringement of copyright.
4.1.2 Issue: Should copyright owners have a right of action against the actual use of a circumvention device or means, or should liability be restricted to provision of the means of circumvention (as section 226 currently provides)?
Submission: For the reasons set out at E above, we submit that liability under any amended section 226 should be restricted to provision of the means of circumvention. However, care must be taken to ensure that provision of a means of circumvention is not proscribed where it is provided for the primary purpose of allowing a permitted act - of any of the types set out at Part III of the Act.
We would suggest an additional subsection in section 226, as amended, to the effect that:
For the avoidance of doubt, it will not be an infringement of copyright to make, import, sell, offer for sale, hire or offer for hire or advertise a device designed to circumvent copy-protection where such making, importing, sale, hire or offering for sale or hire is for the purpose of allowing a copyright user to carry out any permitted act specified in Part III, or to copy a work that is not the subject of copyright.
A provision of this nature would allow scope for manufacturers of circumvention devices to argue that they manufactured the device for a permitted use - just as a photocopier or twin deck tape recorder can be used for both infringing and permitted acts. A provision of this type would enable a Court to decide, on a case-by-case basis, just what the purpose of any given dealing in a circumvention device was.
A provision of this type would legitimise manufacturing a device to circumvent copy protection of a 60 year old novel which has been reproduced on-line. There is no justification for such a work to be "locked-up" when it is not subject to copyright - this may become particularly important as hardcopies of works cease to be produced and only digital versions are produced.
4.1.3 Issue: What is the impact of TPMs on permitted acts? What exceptions should apply?
Submission: See comments at 4.1.2 above.
4.1.4 Issue: If restricted to the provision of means to circumvent, should the standard of knowledge required for liability be subjective or objective.
Submission: We agree that, as proposed, the existing subjective standard of knowledge be maintained.
4.1.5 Issue: Are criminal provisions required in addition to civil remedies in relation to prohibited activities concerning TPMs?
Submission: We agree that, as proposed, the status quo be maintained.
4.2 Electronic Rights Management Information
Submission: Electronic rights management information as distinct from technological protection measures are seen as built in tracking devices to assist copyright owners in detecting copyright infringement in legitimate use of their works. The distinction contained in Part 6 B paragraph 136 is, in our view, justified and the proposals that are made in Appendix B(e) to make provision in the Act to protect against the intentional removal and alteration of ERMI and the dealing in copyright material where ERMIs has been removed or altered is satisfactory.
It is also agreed that there must be the definition of ERMI which would be so carefully drawn as to avoid any confusion with a technological protection measure. It is agreed that such definition should not encompass tracking functions of ERMI.
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