Introduction
A. The Review Process and Information for Respondents
1. In July 2001, the Ministry of Economic Development ("the Ministry") released a discussion paper entitled Digital Technology and the Copyright Act 1994 ("the discussion paper"). This discussion paper was the first step in a public consultation process for the Digital Technology Review ("the review") of the Copyright Act 1994 ("the Act") currently being undertaken.
2. The Ministry received 74 submissions on the discussion paper and these submissions have been analysed and reported on to Ministers. The comprehensive and detailed nature of many of the submissions confirmed that further work by the Ministry was required before any changes to the Act could be considered. It was determined that a further round of submissions would be sought, this time on a position paper setting out the Ministry's preferred policy response to each of the issues initially raised in the discussion paper and commented on in submissions.
3. In preparing this paper, the Ministry also had informal discussions with a range of interested parties. The purpose of these discussions was primarily to test our understanding of the current legal framework before developing a preliminary position on the range of issues previously raised in the discussion paper. An internal working paper , used as a resource for these sessions, is available.
4. Submissions are accordingly invited on each of the preferred policy responses outlined in this paper from a range of interested parties, including users of copyright material, copyright creators and owners, academics, legal practitioners and the general public. Respondents may wish to refer to the Ministry's 2001 discussion paper for background information on each of the issues addressed in the review.
5. Submissions will be considered in the development of policy recommendations to the government early next year on legislative reform and possible accession to the World Intellectual Property Organisation's Internet Treaties. The date of introduction of any amending legislation will depend on the government's legislative programme.
6. The Ministry encourages respondents to provide their submissions electronically. E-mail responses should be addressed to: victoria.pearson@med.govt.nz. Hard copies of submissions supplied by email are not required. Receipt of these submissions will be acknowledged by return email.
7. Submissions can also be sent to:
Copyright (Digital Technology) Review Submissions
Attention: Victoria Pearson
Intellectual Property Policy Group
Regulatory and Competition Branch
Ministry of Economic Development
PO Box 1473
Wellington
8. Further copies of this paper can be accessed from this website.
9. Please note that submissions may be posted on the Ministry's website and are subject to disclosure under the Official Information Act 1992. Persons making submissions that include commercially or otherwise sensitive material that they wish the Ministry to withhold under the Official Information Act should clearly identify the relevant information and the applicable grounds under which the Ministry could seek to withhold the information. The contact details of respondents will be recorded and may be used for future consultation processes unless requested otherwise.
10. Respondents are reminded that the review is restricted to issues raised by digital technology, and that it is not the purpose of the review to undertake a comprehensive revision of the Act in its entirety. Submissions are, therefore, sought on the issues raised in this paper only.
11. The closing date for submissions is Friday, 21 February 2003.
B. The Issues
12. The purpose of this limited review of the Act is largely to assess the applicability, adequacy and operation of the Act in the context of the development and adoption of digital technologies, including the Internet. Another reason for the review is consideration of New Zealand's possible accession to two treaties negotiated by the World Intellectual Property Organisation ("WIPO") - the WIPO Copyright Treaty ("WCT") and the WIPO Performers and Phonograms Treaty ("WPPT"), together known as the WIPO Internet Treaties.
13. The first question to be answered, in considering the various issues raised in the review, is whether the Act needs to be amended at all. Enacted in 1994, the Act is comparatively new legislation when compared to our other intellectual property statutes and it provides a relatively modern base for the review. In addition to meeting New Zealand's TRIPS obligations,1 the Act was intended to address issues already arising at that time out of new technologies, for example, computer programs and cable television. Therefore, it should not necessarily be assumed that the Act will require substantial alteration.
14. A second important question is the extent to which "digital is different". Copyright law first developed before the widespread use of the printing press when the cost and difficulties involved in copying were prohibitive. Since then, copyright has responded to challenges of various new technologies, including the photocopier, film, broadcasting, cable television and music recordings. It is important to consider whether the digital challenge is simply another in a series of technological advances that copyright has had to address or whether it is so inherently different from print and analogue technologies that a different approach to copyright is required.
15. The Ministry's discussion paper also identified some of the opportunities and threats of digital technology, particularly the Internet, for copyright creators, owners and users. Digital technology allows copyright works to be copied, manipulated and disseminated with minimal effort and cost, and to a standard that cannot be matched using analogue technologies. This is obviously of concern to copyright owners. At the same time, the way that we consume information is changing. Users of new technologies such as the Internet have an interest in ensuring that any changes to the Act do not indirectly restrict or prohibit the ability of the public to access works (for example to read, listen and view), which has so far been permitted in the analogue environment. Access issues are considered further in connection with technological protection measures.
16. It is arguable that the advent of new technologies has, to a large degree, shifted the focus of copyright law from reproduction to communication. Wide spread use of the Internet as a means to distribute and communicate works has necessarily extended the constituency of copyright law, beyond the conventional industry players, to include the general public to a greater degree than before, and raises issues such as the application of copyright to web-browsing. The World Wide Web, initially created to enhance the free flow of information, now plays host to a vast amount of copyright material.
17. It is important to consider that digital technology presents challenges in areas other than copyright, for example to existing business and marketing models and to information policy generally. While some digital issues can be addressed by copyright, it would be inappropriate for the digital copyright agenda to attempt to provide solutions to broader information policy issues. In undertaking the current review, therefore, we must consider whether certain issues, such as technological protection measures and electronic rights management information, should be addressed by copyright law or elsewhere.
18. The nature of digital content also means that a combination of approaches will be used to manage copyright material, including commercial (contract), technological and legal solutions. Businesses can be expected to adapt business models in response to digital technologies to allow them to commercialise content in the digital domain. It is not the role of copyright law to protect existing business models or help develop new ones.
19. An underlying consideration in assessing options is, therefore, the impact of any proposed change to copyright law on New Zealand's capacity to harness the potential economic benefits of the Internet and e-commerce generally, not solely the risks and benefits to specific constituencies.
20. Further to these broad issues, there are a series of specific copyright issues that arise out of digital technology developments, many of which are quite technical in nature. The main issues to be addressed by the review are:
- The adequacy of the existing reproduction right;
- The adequacy of the existing communication right;
- The proper extent of Internet service provider liability for copyright infringement;
- The need for legal protection for technological protection measures ("TPMs") and electronic rights management information ("ERMI");
- The need for additional legal protection for non-original databases; and
- Exceptions and limitations to the rights provided in the Act.
21. This paper sets out what the Ministry sees as the preferred policy responses to the main questions arising under each of these issues. In developing these suggested responses, we have considered a range of options drawn from consideration of both local and international experiences, including the submissions made on the 2001 discussion paper. We have also tested these options against the Ministry's copyright policy framework (discussed in the next section). In places we seek specific feedback on how best to implement our suggested options.
22. It is important to note that the government has not reached any final conclusions on these matters. The purpose of the submission process is to draw on the knowledge and experiences of those involved in the copyright field in order better to inform the policy-making process.
C. Copyright Policy Considerations
23. The issues involved in the review are multi-faceted and have potentially far-reaching implications. It is, therefore, crucial that the review takes place within a robust analytical framework. This section briefly sets out The Ministry's copyright policy framework, which has been useful in assessing the implications of digital technology on copyright.
24. The key principle that guides the development of copyright policy is the enhancement of the public interest - copyright laws must benefit New Zealand as a whole. While the term "balance" is frequently used when discussing copyright policy, this balance is about the wider public interest, rather than simply achieving a middle ground between the competing aims of creators, owners and users of copyright works. The Ministry prefers a more principled approach to law reform, based on broad principles, not narrowly defined and negotiated rights and exceptions.
25. In determining what policy approaches are in the public interest there are a number of aspects to consider, including economic, legal, social and cultural objectives. Examples of these often overlapping objectives include:
- The government's goal of growing an inclusive, innovative economy for the benefit of all New Zealanders, and the need to support research and development, while minimising regulatory barriers to innovation. New Zealand's intellectual property laws are an important element of the government's Growth and Innovation Framework, including creative industry development.
- Wider education and information technology objectives.
- New Zealand's international obligations under the various treaties to which we are a signatory.
26. Examples of initiatives currently being developed by the government include the ongoing development of a general New Zealand history site 2 and the development over the next 9 years of a New Zealand Online Encyclopaedia. 3
The history website provides a first port of call for New Zealand history information on the Internet. The encyclopaedia will provide a comprehensive guide to the natural environment, history, culture, economics, institutions, people and social development of this country. It will incorporate photographs, sounds, moving images, graphs and maps.
27. In considering this range of objectives, inevitably a balancing exercise must be carried out (and reflected in legislation) that considers:
- The incentives required to ensure creation, production and distribution of creative works that meet society's needs and demands;
- Minimising the costs to society of copyright protection; and
- Ensuring reasonable access to copyright material, both for creators as an input in cumulative creation, for special needs groups and for consumers in general.
28. An example of this balancing exercise can be seen in the various ways the Act aims to ensure copyright law does not unreasonably restrict access to and use of copyright works. First, it limits the scope and duration of the rights themselves. Secondly, it provides for exceptions to copyright infringement for specific purposes. Such exceptions include the limited use of copyright material by educational institutions, libraries and archives. The question of access to copyright works by these institutions is an important part of the public interest balance that copyright policy seeks to achieve. The implications of digital technology in this area will have to be closely considered against the need to provide incentives for the creation of copyright works.
29. Consideration of international obligations (both current and prospective) is also important. 4
Without effective copyright protection, at least commensurate with international standards, foreign copyright owners, exporters and investors may not have the confidence to export copyright products to New Zealand. This has implications both economically, by reducing the amount of material that creators and consumers may have access to, and more generally by limiting access to information and copyright goods. Our policy responses are, therefore, both limited and guided by our international obligations. An important aspect of the review is to consider whether New Zealand should accede to further international conventions and take on new obligations, namely through the WIPO Internet Treaties.
30. In copyright policy, as in any area of regulation, the objective of clear and transparent legislative reform is important, so that the law is more easily accessible and provides greater certainty for stakeholders as to what is restricted or permitted. It seems logical that if people can understand copyright law, they are more likely to follow it. The need for clarity becomes all the more important as digital technology changes the way we access information and extends the constituency for copyright law increasingly to the general public, in addition to the traditional industry players and legal specialists.
31. Technological neutrality is also an objective of this law reform exercise. Copyright law has historically developed incrementally in response to technological changes and approaches from affected stakeholders. Copyright protection for broadcasting and cable programme service transmission is an example of this. The current review considers, for example, whether the narrowly defined communication right with respect to broadcasting and cable programme services should be extended to other transmission technologies in a technology-neutral fashion. There are, however, risks in pursuing neutrality for its own sake where there are differences that justify separate or distinct approaches.
32. The options recommended in each of the substantive areas of this paper have been considered in the context of the above policy framework. In considering the application of copyright law to new technologies, and claims for additional rights or exceptions, the fundamental purpose of copyright law - the enhancement of the public interest - must be kept in mind. For example, in considering the issue of transient copying we must ask if the public interest is best served in determining that RAM copies, automatically made as part of a technical process, are an infringement of the reproduction right. Is enhanced protection against the circumvention of TPMs an essential incentive for creation of and investment in digital works? Is the cost to society of the potential impact of TPMs on limiting access to works (including those that have moved into the public domain) and preventing the exercise of permitted acts justified? Will creators and owners of copyright works make their works available online or in new digital formats if additional protections against the circumvention of TPMs are not provided?
1 New Zealand is a signatory to the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") - Annex 1C to the Agreement Establishing the World Trade Organisation.
2 Refer www.nzhistory.net.nz.
3 Refer www.mch.govt.nz/ref/enz/index.html
4 New Zealand is a signatory to a number of international treaties, including:
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