Appendix B: Summary of Proposed Policy Responses
A. Reproduction Right
(i) Storage and Digitisation
1. The Ministry considers that the scope of the current reproduction right (and definition of "copying") is sufficient to allow copyright owners to control the digital reproduction (including first digitisation) of their works. The Ministry's preferred policy response would, therefore, be to leave the current definition of copying in section 2 unchanged. There may, however, be some benefit in including a specific reference that "material form" includes digital formats. Views are sought on how the suggested change in respect of material form might be drafted.
2. The Ministry also suggests that the apparent confusion concerning the relationship between the first two paragraphs of the definition of copying in section 2 of the Act could be addressed by amending the provision so that paragraph (b) is a subset of (a).
(ii) Transient Copying
3. The Ministry's preferred policy response is that transient copying continues to be included within the broad definition of copying, but with a specific purpose-based exception. Such an exception would be directed towards copying automatically undertaken as part of a technical process involved in making an authorised use of a work and would apply to transient copies that have no independent economic significance.
4. The Ministry seeks suggestions concerning the definition of "technical process", particularly the degree to which technical processes should be linked to communication processes, or should apply more generally. The Ministry suggests a wider approach, not limited to communication.
B. Communication Right
(i) Technology-Neutral Right of Communication
5. The Ministry proposes that a technology-neutral right of communication to the public be established in place of the existing technology-specific communication right to broadcast a work or to include it in a cable programme service.
6. The Ministry recommends amending the Act to provide protection under a new technology-neutral category of "communication works", which would include broadcasts, cable programmes and other transmission technologies including webcasting. We are interested in views on the parameters of a communication works category.
(ii) Webcasts as Works
7. The Ministry recommends that the Act be amended to provide protection to a new category of "communication works". This would extend protection from the signals that carry programme content in broadcasts and cable programmes to all forms of transmission signals. Views are sought on the potential parameters of a communication works category.
(iii) Cable Retransmission of Free-to-Air Broadcasts
8. The Ministry recommends that section 88 of the Act, which allows retransmission of free-to-air broadcasts by cable programme service providers, be repealed. Alternatively, section 88 could be left unchanged until such time as 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. Comment on this issue is invited, particularly from cable programme service providers.
C. Internet Service Provider Liability
9. The Ministry recommends excluding ISPs from some liability, but does not recommend preventing a content owner from seeking injunctive relief in respect of information stored and transmitted by ISPs.
(i) Definition of "Internet Service Provider"
10. The Ministry recommends that a definition of "service provider", or some similar term, be inserted in the Act. The definition should be based on the nature of the activity (for example, caching, hosting, providing transmission services) rather than on the nature or status of the organisation itself.
(ii) Transient Copying and Caching
11. The Ministry proposes the introduction of a section noting that the mere provision of physical facilities for enabling or making a communication does not itself constitute an infringement of copyright, or an authorisation for such infringement.
12. The Ministry also recommends providing an exception for the caching of frequently accessed websites, which would allow more cost-effective and efficient access to Internet material. This exemption from liability would be subject to certain conditions, namely that the service provider:
- Does not modify the information;
- Complies with conditions on access to the information;
- Complies with any rules regarding the updating of the information;
- Does not interfere with the lawful use of technology to obtain data on use of the information; and
- Acts expeditiously to remove or disable access to such information upon obtaining knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled.
(iii) Secondary Infringement Provisions
13. In determining an ISP's liability under the secondary infringement provisions the Ministry proposes applying a "constructive knowledge" test. This involves knowledge of facts or circumstances from which a reasonable person would arrive at the relevant belief. In order to provide some guidance on the issue of knowledge, the Ministry considers that a number of factors should be set out in the legislation to which a court should have regard in determining knowledge for the purposes of the ISP section. This would include receipt of a notice from a content owner.
D. Technological Protection Measures
(i) Scope of Section 226 (Copy and Access Protection)
14. The Ministry proposes that section 226 of the Act retain its focus on copy control measures, and not provide legislative protection against the circumvention of TPMs that only control access. In making this proposal the Ministry intends, for example, that the supply and use of devices that allow the circumvention of regional zone access protection (to allow the playing of legitimately purchased DVD movies or games etc. from other zones) would not infringe the TPM provisions.
15. Copyright owners could continue using TPMs that control access, however, without assistance from the Act. Owners could, for example, continue to rely on other legal measures, such as the law of contract, where an access protection measure is circumvented.
16. To implement the suggested approach outlined in this section the Ministry proposes that definitions be inserted for the terms "TPM" and "circumvention device", as the Act does not currently contain these definitions. Suggestions are sought on how best to define these terms, consistent with this proposal.
(ii) TPMs - Actual Use or Provision of Means of Circumvention
17. The Ministry's proposed response is to retain the current focus on the manufacture of devices or means, and publication of information, and not extend liability to the act of circumvention itself. The Ministry considers that the current requirement in section 226 that devices or means must be "specifically designed or adapted" to circumvent copy-protection, is sufficient to address the concerns of the manufacturers of devices with legitimate purposes. A reference to devices that have only a limited commercially significant purpose or use other than circumvention may, however, be appropriate.
18. Submissions are invited on how means of circumvention might be provided to allow the exercise of permitted acts.
(iii) TPMs and Exceptions
19. The Ministry proposes that exceptions apply (in respect of the manufacture or supply of TPMs designed to provide copy-protection) to allow the exercise of the following specific purposes: error correction, interoperability and encryption research. The Ministry also considers that liability should not arise where a TPM is circumvented to the extent necessary to allow a user to exercise a permitted act, or to enable copying when the period of copyright protection has expired.
20. In relation to obtaining access to enable the actual exercise of permitted acts, the Ministry notes that some countries have undertaken to institute some form of review process to determine the effect of TPM provisions on the ability of users to make use of permitted acts. It is suggested, therefore, that the Ministry reconsider this issue in three years time, and provide policy advice to government accordingly.
(iv) TPMs - Subjective or Objective Knowledge Requirement
21. The Ministry recommends retaining the existing subjective test, consistent with other aspects of the Act.
(v) TPMs - Offence Provisions
22. The Ministry's proposed policy response is to retain the status quo. If, however, offence provisions were to be instituted, the Ministry considers that a subjective knowledge test would be appropriate.
E. Electronic Rights Management Information
23. The Ministry's preferred policy response is to make provision in the Act to protect against the intentional removal and alteration of ERMI, and the commercial dealing in copyright material where a dealer knows that ERMI has been removed or altered. This necessitates the development of a definition of ERMI. The Ministry's recommendation is that any definition of ERMI included in the Act not encompass the tracking functions of ERMI.
F. Non-Original Databases
24. The Ministry recommends retaining the status quo, on the basis that the low threshold test for originality in New Zealand provides adequate protection.
25. There may, however, be a need to reconsider this issue in the future depending on how work on the question of additional protection for databases by the WIPO Standing Committee on Copyright and Related Rights progresses.
G. Permitted Acts and Exceptions
(i) Application of Existing Exceptions to the Digital Environment
26. The Ministry considers that the existing exceptions should apply in the digital environment, unless cogent reasons exist to the contrary. There may, however, be a requirement for limitations and safeguards that are not necessary for print and analogue works.
(ii) Fair Dealing
27. The Ministry's preferred approach is to clarify the application of the fair dealing provisions in sections 42 and 43 in the digital environment and to ensure that any necessary changes maintain the existing level of technological neutrality.
(iii) Educational Institutions, Libraries and Archives
Archiving and Preservation
28. The Ministry seeks views on the appropriateness of an exception that would allow the digital archiving of entire collections, on condition that those digital copies not be made available to the public unless the original work is lost, damaged or at risk.
Digitisation and Making Available
29. The Ministry's preferred response is to make provision for libraries and archives to provide access to material that they receive in digital form through on-site terminals, but to not permit them to digitise hard-copy material for this purpose. The Ministry is interested in views on whether this material could also be made available through restricted remote access.
Interloan
30. The Ministry, therefore, seeks feedback on how the Act could reflect the practical need of libraries to use digital technology in their interloan activities, while at the same time recognising any potential risks of digital distribution to copyright owners' rights.
Caching
31. The Ministry considers that it would be appropriate to clarify section 44 to allow the caching of websites for educational purposes, perhaps for limited periods, for example, up to six months.
Distance Learning
32. The Ministry does not recommend the introduction of new exceptions for distance learning.
(iv) Time Shifting
33. The Ministry's preferred approach in respect of the communication right, discussed in Part Three, is to create a technology-neutral right of communication to the public, which would cover both transmission and the making available of works. Associated with this is the proposal to create a technology-neutral category for "communication works". The Ministry recommends amending section 84 so that it applies to all communication works except for communication works available on-demand.
(iv) Format Shifting
34. The Ministry proposes an exception that would allow the owner of a legitimately purchased sound recording to make one copy of that sound recording (and the musical work that it contains) in each format for his or her own personal and domestic use. The Ministry seeks submissions on whether a format shifting exception should also extend to works other than sound recordings, along with supporting reasons.
(v) New Exceptions
35. The Ministry notes that any exceptions need to comply with the Berne Three-Step Test but does not recommend that it be codified in our Act. Two possible new exceptions, which may be appropriate and in compliance with the Berne Three-Step Test are: decompilation of software and error correction in software.
H. WIPO Internet Treaties
36. The Ministry recommends making any changes to the Act as a result of the current review in a way that benefits New Zealand, whilst enabling our compliance with relevant aspects of the WIPO Internet Treaties. Views are sought on New Zealand's possible accession to these treaties.
Back to Top