6. Part 8: Permitted Acts and Exceptions
6.1 Fair Dealing
6.1.1 Issue: whether the Fair Dealing exceptions in sections 42 and 43 are adequate for digital technology and whether further exceptions are necessary.
Submission: The Committee agrees with the Ministry's proposed approach.
6.1.2 Issue: Status of transient copies made in the course of obtaining a document for research or private study.
Submission: The Committee agrees with the Ministry's proposed approach, however the definition of transient or intermediate copies will need to be carefully crafted. For instance, documents accessed may be cached on one or more servers and retained for a significant period of time.
6.2 Educational Institutions, Libraries and Archives
6.2.1 Archiving and Preservation
Submission: The Committee agrees with the Ministry's proposals, to avoid "horse has bolted" difficulties, e.g. where a book is destroyed or lost unexpectedly. The proposed condition should prevent any misuse of such an exception.
6.2.2 Digitisation and Making Available
Issue: Whether digitised material should be available through restricted remote access.
Submission: The Committee sees little difference between a student on campus and a student off campus. It is simply a matter of convenience. If the establishment is entitled to make material available to students then this should be done in the most convenient manner for them.
6.2.3 Museums
Submission: The primary objective of these exceptions is to allow private research or study. The Committee sees no good reason why museums should not be included in the list, provided they are acting for the purpose of private research or study.
6.2.4 Interloan
Submission: Libraries should be permitted to interloan in digital format, with possibly an additional undertaking by the receiving library not to provide the digital version to anybody but the person requesting it.
6.2.5 Caching
Submission: This problem does not arise for hardcopy, as a hard copy publisher cannot easily remove its works from circulation once it has published them. Under the print paradigm, once the document is made public, the purchaser has a right to retain it for as long as it wishes. This changes under the digital paradigm, where the publisher can more easily withdraw material. The same principle should apply for both media, i.e. once a document has been made public, the owner should not be able to retract it from those who have accessed it legitimately while it was available.
6.2.6 Distance Learning
Submission: The educational institution exceptions relate to students of the institutions and do not differentiate between students on campus and elsewhere. If a student can ask a librarian to provide a copy of an article, and this is permitted, it seems to make little difference whether the student asks in person and is given a photocopy, or asks by e-mail and is sent a scanned version. Distance learning should fall within the existing exceptions and no further exception should be required.
6.3 Time Shifting
Submission: The Committee agrees with the Ministry's proposals. If you can video a television programme to watch at a different time then you should be able to record a transmission only available at a particular time on the Internet to watch at a different time.
6.4 Format Shifting
Issue: format shifting of sound recordings.
Submission: The Committee agrees with the Ministry's proposals.
Issue: Should the exception extend to works other than sound recordings?
Submission: This could apply where a consumer wishes to copy a movie between DVD/computer hard drive/video, or where a consumer wishes to scan and/or use optical character recognition on hardcopy materials, for instance so they are searchable. For a film, the same reasoning applies as for a sound recording - if the consumer has purchased the film in one format they should be entitled to convert it to another format for their personal use. For hardcopy materials, the issue raised earlier applies - whether a consumer should be entitled to make a digital version where the publisher has not published digitally. The Committee's view is that format shifting should be permitted, providing it is only for personal use.
6.5 New Exceptions
Issue: whether any further exceptions should be included in the Act. Parts 2 and 4 of the Paper have proposed exceptions for transient copying and ISPs.
MED's proposal: to include two new exceptions. The first would allow software to be. The second would allow the.
Submission: The two exceptions suggested (decompilation for purposes of obtaining information necessary to create an independent programme and copying or adaptation of a computer program for purposes of error correction) seem to be reasonable uses of copyright material and should be included. Some members of the committee are of the view that both of these exceptions should be able to be excluded by contract. The need to draw attention to any such exclusion has also been discussed.
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