Part Three: Communication to the Public
A. Issue Summary
54. The Act currently provides copyright owners with a technology-specific communication right to broadcast a work or to include a work in a cable programme service.13 "Broadcast" is defined to mean a wireless transmission either capable of being lawfully received by the public (in New Zealand or elsewhere) or for presentation to members of the public (in New Zealand or elsewhere). 14 "Cable programme service" is extensively defined in section 4 of the Act, subject to a list of exceptions, as a transmission service by wired telecommunication means to the public or for reception at two or more places, either simultaneously or at different times, in response to requests.
55. The discussion paper compared the existing communication right with the broad "right of communication to the public" provided in the WIPO Internet Treaties.15 It asked whether the existing technology-specific right was sufficient to allow copyright owners to control the communication to the public of works over the Internet, for example, via webcasting or the making available of works in interactive, on-demand systems ("push" and "pull" technologies respectively). If not, would the creation of a broad technology-neutral right of communication to the public be in the public interest?
B. Perspective and Proposed Policy Response
56. In considering whether the Act provides a right to control the communication to the public over the Internet, by way of active transmission (for example by webcasting) and the making available of works in interactive, on-demand systems, the Ministry has considered the current cable programme service right and the definition of cable programme service.
57. The Ministry considers that the existing cable programme service right may be sufficient to cover webcasting as a form of transmission (as webcasting-type activities are not excluded from the definition of cable programme service in section 4 of the Act). The application of section 4 to webcasting is, however, dependent on the interpretation of a detailed and technical section of the Act, and the question has not been judicially considered. The issue is further complicated by the fact that the Internet utilises both wired and wireless technologies.
58. Thinking about the issue from the perspective of interactive, on-demand services ("pull" rather than "push" technologies), the right to restrict unauthorised inclusion of a work in a cable programme service may apply. The exclusion, however, of transmission services that are interactive in nature means that it is unclear if the cable programme service right would allow copyright owners to take action against the unauthorised making available of copyright works (for example, music recordings or films) on a server for users to access, select and download at their own convenience.
59. Respondents to the discussion paper (both copyright owners and user groups) generally agreed that the Act requires amendment to provide copyright owners with an explicit right to control the communication of works to the public over the Internet. It was suggested that such an amendment is required to remove ambiguity and provide certainty, assist copyright owners to take action against the unauthorised webcasting of their works and encourage the use of new technologies by copyright owners to transmit copyright material to consumers.
60. The vast majority of submissions favoured replacing the technology-specific broadcasting and cable programme service rights with a broad technology-neutral communication right that would cover broadcasting, inclusion in a cable programme service, webcasting or any future method, including any combination of technologies.
61. The Ministry's proposed policy response is to establish a technology-neutral right of communication to the public that would cover both transmission and the making available of works. Creation of a specific webcasting right or changes to the cable programme service definition would only provide a temporary solution as new technologies develop and others become obsolete.
62. In making this recommendation, the Ministry is mindful of the growing importance of rights of communication, compared to reproduction, in the digital age. Extension of the communication right to new communication technologies is a necessary incentive to ensure continued supply of and investment in creative works in the digital environment. If works may be freely communicated on the Internet (without permission of the copyright owner) this will inevitably affect the market for legitimate copies by increasing the number of infringing copies in existence.
63. At the same time, the move to a technology-neutral right will not result in a significant shift in the balance between owners and users of copyright works. Rather, it recognises of a change in the way works are consumed and distributed. Any costs to society are outweighed by the necessary incentives, and can be minimised by ensuring continued access to works and exercise of permitted acts (considered later in this paper).
64. If New Zealand copyright law is to be seen as credible internationally, a move to a broad technology-neutral communication right is essential. Creation of the technology-neutral right would make New Zealand's copyright law consistent with the WIPO Internet Treaties in this respect, and with the copyright legislation of our major trading partners who have either adopted the WIPO Internet Treaties, or are in the process of doing so.
C. Webcasts as Works
(i) Issue Summary
65. The Act provides protection for the signals that carry programme content in both broadcasts and cable programmes. Broadcasters and cable programme service providers, therefore, own separate copyright in their transmissions that is independent of copyright that might exist in the content carried by transmission signals.
66. The issue that arises is whether webcasts, as transmissions to the public via the Internet, should be protected as copyright works in the same way that broadcasts and cable programmes are protected (if they are not already protected as cable programmes via the existing definition of cable programme service in section 4 of the Act). Similarly, should the Act provide this right for any future transmission technologies?
(ii) Perspective and Proposed Policy Response
67. The Ministry considers (on the basis of submissions received) that sufficient reasons do not exist to differentiate between traditional transmission technologies, such as broadcasting and cable programme services, and new technologies, such as the Internet.
68. The Ministry's preference would be to amend the Act to provide for a new technology-neutral category of "communication works", that would encompass broadcasts, cable programmes and other transmission technologies including webcasting. This is preferable to the creation of a new category of works to protect webcasts specifically, which would attract problems of technological specificity. We are interested in gathering views on the parameters of a communication works category.
D. Cable Retransmission of Free-to-Air Broadcasts
(i) Issue Summary
69. Section 88 of the Act provides that a broadcast made from a place in New Zealand can, by reception and immediate retransmission, be included in a cable programme service, except where a licensing scheme or arrangement is in place. Section 88(2)(b) provides that copyright in any work included in a broadcast is not infringed "if and to the extent that the broadcast is made for reception in the area in which the cable programme service is provided".
70. The issue is whether the cable retransmission exception in respect of free-to-air broadcasts should be retained, or perhaps extended to give the same opportunity to satellite subscription broadcasters and webcasters.
(ii) Perspective and Proposed Policy Response
71. When section 88 was enacted in 1994, there were two main objectives. First, to encourage greater competition and investment in the cable network and service industry by allowing cable service providers to bundle free-to-air television with telephone and other communications services. Second, to improve the quality of television reception in areas where signal quality was inadequate.
72. The Ministry's preferred policy response is to repeal section 88 and leave television service providers to rely on commercial arrangements to carry other signals. Measured against the policy framework, no evidence has been presented to suggest that the incentives provided by the cable retransmission exception continue to be required to encourage investment in the cable industry. Cable programme service providers, in particular, are invited to comment on this issue.
73. Alternatively, section 88 could remain unchanged and be re-considered at a later date when the WIPO Standing Committee on Copyright and Related Rights completes the development of new international standards concerning copyright in relation to broadcasting and related transmission issues.
13 Copyright Act 1994, section 16(1)(f).
14 Ibid, section 2(1) - definition of "broadcast".
15 Article 8 of the WCT provides that:
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