Part Nine: WIPO Internet Treaties
A. Issue Summary
201. The WCT and the WPPT came into force on 6 March 2002 and 20 May 2002, respectively. 56
One of the questions being asked as part of the digital copyright review is whether New Zealand should become a party to these treaties. The Ministry again seeks the views of stakeholders on this question, bearing in mind the analysis in the earlier parts of this paper.
202. It should be noted that the discussion that follows is without prejudice to any decision the government may take in relation to the treaties. As with any multilateral treaty, any decision to accede to the treaties would be subject to a parliamentary process that includes examination by select committee.57
203. This discussion examines the issues associated with acceding to the WIPO Internet Treaties by focusing on the WCT and the new rights it provides creators and owners of copyright works, 58 and those aspects of the WPPT that relate to the rights of producers of phonograms.59 Those aspects of the WPPT that relate to the rights of performers of performances fixed in phonograms are subject to a separate review. 60
204. The WIPO Internet Treaties provide copyright owners and producers of phonograms with new exclusive rights of distribution, 61 communication, 62 rental 63 and making available,64 as well as provisions for enforcement,65 protection for anti-circumvention measures66 and measures to protect electronic rights management information.67 The WPPT also makes provision for an optional right to equitable remuneration for secondary uses of phonograms.68 These new rights extend or clarify the protection provided under the Berne and Rome Conventions69 and under TRIPS, specifically in relation to the protection of copyright material in the digital environment.
205. The Ministry's analysis to date suggests that the provisions of the Act substantially comply with the requirements of the WCT and some of the requirements of the WPPT. The areas where the Act appears to be compliant are: the reproduction right,70 treatment of computer programs and compilations of data as literary works,71 distribution right, rental right, term of protection,72 protection of TPMs,73 the principle of national treatment and the provisions on enforcement of rights in the areas where rights are currently provided.74
206. The following commentary provides an assessment of where there may be gaps in compliance:
- Communication (and making available)75 - New Zealand is partly compliant as it provides an exclusive right to broadcast or include a work in a cable programme service.76 The Act does not, however, explicitly cover Internet transmission. This is discussed in detail above in Part Three.
- Making available77 - in relation to the exclusive right of producers of phonograms to authorise the making available of works to the public by wired or wireless means, including on-demand interactive systems. New Zealand is unlikely to comply as the digitisation of sound recordings, films and typographical arrangements may not infringe the reproduction right under New Zealand legislation.
- Remuneration right for phonogram producers in respect of secondary uses of phonograms78 - the Act has no remuneration regime for producers of phonograms. Implementation of this article is, however, optional.
- ERMI79 - there are no specific provisions in relation to ERMI, although causes of action under other legal principles (for example, consumer protection legislation, passing off, contract) may have some application. Protection for ERMI is, however, recommended above in Part Six.
207. The table attached as Appendix A provides a summary of the above information for ease of reference.
B. Perspective and Proposed Policy Response
208. The competitive opportunities offered by digital technology and the global environment in which owners and users of copyright goods operate point to the possible benefits to New Zealand of ensuring that our copyright legislation is consistent with international law and compatible with the legislation of our major trading partners. The United States and Japan, for example, are already parties to the WIPO Internet Treaties, whilst the United Kingdom80
and Australia81 are in the process of adopting measures that would enable them to accede.
209. The Ministry has, in various parts of this paper, pointed to a number of proposed changes to the Act that present advantages to New Zealand copyright owners, creators and users. A natural extension of this has been to give thought towards implementing these changes in a way that would enable New Zealand to consider acceding to the WIPO Internet Treaties at a later date. Many respondents to the Ministry's discussion paper indicated support for this approach.
210. In proceeding down this path, there is scope within the WCT and the WPPT for countries to implement legislative change in a way that best meets their national interests. This allows us to take into account the domestic factors that are unique to New Zealand whilst moving our legislation towards a position of compliance with the treaties.
211. The following is an analysis, derived in part from the Ministry's analysis of submissions, of the benefits and costs of implementing legislation in a way that would allow New Zealand to accede to the WCT, should this be considered desirable, and that would enable our compliance with those aspects of the WPPT relating to producers of phonograms.
(i) Benefits
- Clarifying the application of copyright to the Internet and other digital environments through the use of carefully considered amendments that are consistent with the WIPO Internet Treaties. This would provide greater legal certainty, which could facilitate investment in New Zealand's copyright industries and investment in new technologies, such as electronic commerce.
- Replacing technology-specific language with technology-neutral terms (as modelled by the treaties), thereby reducing the need to amend legislation as new technologies develop.
- Providing a minimum level of reciprocity of protection for New Zealand copyright creators and owners in other countries and vice versa. This may increase the level of copyright material available in New Zealand by encouraging foreign copyright owners to release more of their work in New Zealand.
- Reducing compliance costs through the use of legislative frameworks that are consistent with our main trading partners, thereby minimising the levels of specialised knowledge required in the area of copyright.
- Signalling to the international community, and our trading partners in particular, the importance New Zealand places on maintaining an up-to-date copyright regime.
(ii) Costs
212. A number of respondents perceive that there are potential costs associated with amending New Zealand legislation in a way that would enable it to become a party to the WIPO Internet Treaties. One of these concerns is the possible increase in the cost of copyright materials as copyright owners pass on the costs associated with adopting TPMs and protection for ERMI. Another is the prospect that an increase in the use of TPMs may limit or prevent access to copyright material. Accession to the WIPO Internet Treaties is not, however, a precursor for these costs to arise. Copyright owners and creators have already begun to adopt TPMs and ERMI and are using contracts or licences as a way of ensuring they receive equitable remuneration for the use made of their works. As indicated in other parts of this paper, these are issues that are not necessarily within the ambit of copyright legislation.
213. The question of whether or not New Zealand should accede to the WIPO Internet Treaties raises a number of issues, most importantly being the extent to which New Zealand would benefit from doing so. The Ministry favours making any changes to legislation as a result of the current review in a way that achieves the balance that has been discussed earlier, whilst enabling our compliance with the relevant aspects of the WIPO Internet Treaties. Our analysis suggests that in doing so the benefits of acceding to the treaties at a later date outweigh the costs. The views of stakeholders on this issue will assist the development of any proposals on the matter.
56 The WCT is a special agreement within the meaning of Article 20 of the Berne Convention. Similarly, the WPPT extends the provisions of the Rome Convention.
57 All "multilateral" treaties (to which three or more countries have agreed) that are subject to the formal steps of ratification, accession, acceptance or approval are to be tabled in the House of Representatives before a final decision is made. The treaty will then be referred to the Foreign Affairs, Defence and Trade Select Committee, which will be able to inquire into the treaty itself or refer it on to another Select Committee.
58 These are currently covered by the Copyright Act 1994, sections 14 and 16.
59 In New Zealand legislation, sound recordings are protected as copyright works (Copyright Act 1994, section 14(1)(b)) and producers of phonograms are considered to be authors (Copyright Act 1994, section 5(2)(b)). Producers of phonograms are, therefore, treated as copyright owners and not as owners of neighbouring rights as is the case in civil law countries.
60The WPPT provides new exclusive rights for performers' moral rights, economic rights in unfixed performances (which New Zealand provides), a reproduction right, a right of distribution, a rental right and a right of making available. The issues associated with these rights were outlined in a Ministry document Performers' Rights - A Discussion Paper issued in July 2001.
61 WCT, Article 6 and WPPT, Article 12.
62 WCT, Article 8 (which also covers making available).
63 WCT, Article 7 and WPPT, Article 13.
64 WCT, Article 8 and WPPT, Article 14.
65 WCT, Article 14(2) and WPPT, Article 23.
66 WCT, Article 11 and WPPT, Article 18.
67 WCT, Article 12 and WPPT, Article 19.
68 WPPT, Article 15.
69 New Zealand is not a signatory to the Rome Convention. By virtue of TRIPS, however, New Zealand is required to comply with the substantive provisions of that agreement.
70 WCT, Article 1 (which requires compliance with Berne Convention, Article 9) and WPPT, 11.
71 WCT, Articles 4 & 5.
72 WCT, Article 1 (which requires compliance with Berne Convention, Articles 7 & 7bis), WCT, Article 9 and WPPT, Article 17.
73 WCT, Article 11 and WPPT, Article 18.
74 WCT, Article 14 and WPPT, Article 23.
75 WCT, Article 8.
76 Copyright Act 1994, section 16(f). Sections 2 and 4 define "broadcast" and "cable service programme" respectively in terms of a wired/wireless distinction.
77 WPPT, Article 14. Note that this is a separate right for producers of phonograms from the making available right contained within the communication right provided by Article 8 of the WCT.
78 WPPT, Article 15.
79 WCT, Article 12 and WPPT, Article 19.
80 By virtue of the adoption by the European Union of the European Union Copyright Directive.
81Legislation, which gave effect to the principal provisions of the Internet Treaties, was enacted in the Copyright Amendment (Digital Agenda) Act 2000, with some minor amendments still to come, one being in relation to extending the term of protection for photographs.
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