10. Permitted Acts and Exceptions
10.1 Telecom supports the Ministry's preferred policy response in relation to permitted acts and exceptions, except where noted below.
Research or Private Study
10.2 Telecom considers that where s43(4) authorises the making of one copy of a work for fair dealing purposes, that any transient copying be regarded as a distinct and separate exception. In addition, copies made under s43(4) should be required to be made from the original work and not from a copy. Each of these preserves the commercial benefit to the copyright holder to the extent possible while still not inhibiting research or private study.
Educational Institutions, Libraries and Archives
10.3 Telecom does not support the permission of educational institutions, libraries and archives to archive entire collections. Section 55 of the Act is aimed at protecting specific works that are either at risk of damage through degradation or need to be preserved. Section 55 applies only where it is not reasonably practicable to purchase a copy of the item in question to fulfil the purpose. Archiving entire collections is not in keeping with the purpose of section 55 and should be rejected.
10.4 Telecom is in agreement with the Ministry that libraries and archives should not be permitted to digitise material only available in hard-copy for the purpose of providing such material online. Telecom's concern in this regard is that the right of copyright owners to digitise their works and make them available in digital form for commercial exploitation is effectively reduced by increasing the number of viable copies in circulation through digital distribution.
10.5 Telecom also does not consider that libraries and archives should be entitled, by a statutory exception, to make electronic materials available through restricted remote access. This right could be available through commercial licence negotiations and if otherwise not restricted could see these institutions operating on a near-to-commercial profitable basis with the benefit of statutory protection through a permitted use exception.
10.6 In respect of the Ministry's approach regarding caching of websites, Telecom submits that an educational institute which is caching for instructional purposes should be required to continue to use the original source (i.e. the live website) until the original content is no longer displayed there. Only then should the cached copy of the website be used by the educational institution. This ensures that the visited website maintains its traffic and records of traffic which may be crucial to its business model. If a caching exception is introduced, Telecom submits that intermediaries from which that content is cached are provided with a statutory release from any licensing restrictions, since they will not be in a position to prevent caching by third parties who do not enjoy the statutory exception. Telecom's concerns here also apply to archiving, in that when material is archived from an intermediary, then that intermediary should also enjoy a statutory release from any breach of any licensing provisions.
10.7 Telecom is in agreement with the Ministry as regards distance learning.
Time Shifting
10.8 Telecom submits that the time shifting exception should not apply to all Internet content. Major issues exist here for commercial Internet content providers, as advertising revenue can be a significant revenue stream for Internet website operators. The Ministry approach would allow websites to be copied under the time shifting exception provided in s 84 of the Act, as a result of which many New Zealand Internet website businesses would be commercially undermined. Telecom submits that content that is available at any time on request should not be subject to the time shifting exception as it has been provided as an on-demand service.
10.9 Telecom submits that overall s 84 needs to be controlled tightly as it represents a significant inroad into copyright protection and as more copyright works are delivered across the Internet, time shifting exceptions will encroach to a large extent on copyright owners' ability to sell works. Time shifting digital copyright works also creates another opportunity for users to create viable copies of works in easily transferable formats, whereby infringement of copyright can be easily achieved.
Format Shifting
10.10 Telecom is concerned to see that the new exception for format shifting must be drafted in a manner which requires the original version to have been purchased as an original version for personal or domestic use, and not acquired as a copy of another copy or a copy of a time shifted communication. There is a significant risk that what appears to be a narrow exception may end up to be inappropriately wide as new forms of distribution emerge. For instance, where a customer pays a subscription for a certain number of sound recordings to be downloaded on a monthly basis, each sound recording could be legally format shifted, with a serious impact on legitimate sales/transactions.
New Permitted Use Exceptions
10.11 Telecom notes the Ministry's intention to introduce new exceptions for error correction in software and decompilation of software. Any such exceptions should take into account the comments set out in relation to TPM exceptions above.
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