Part One: Introduction
A. The Review Process
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 public consultation regarding 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. This working paper will form the basis for the next stage in the review process, namely a series of targeted consultation workshops to be held with various key stakeholders. These include users of copyright material, copyright creators and owners, academics and legal practitioners.
3. A position paper will then be released for further public consultation later this year. The Ministry intends to provide policy advice to Ministers early next year. This would also mean that any amending legislation could be introduced in 2003.
B. The Issues
4. The first question to be asked as part of the review is whether the Act needs to be amended at all. Enacted in 1994, the Act is a comparatively new piece of legislation in comparison with 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 it was intended that the Act should address issues already arising at that time out of new technologies, for example computer programs and cable television. Therefore, it cannot necessarily be assumed that the Act will require substantial alteration.
5. A second important question is the extent to which "digital is different". Copyright law first developed before widespread use of the printing press when cost and difficulties involved in copying were virtually prohibitive. Since then, copyright has responded to challenges of various new technologies, including the photocopier, film, broadcast and 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.
6. 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. An underlying consideration in assessing options will be the impact any proposed change to copyright law has on New Zealand's capacity to unleash the potential economic benefits of the Internet and e-commerce generally.
7. Following on from these broad issues, there are a series of specific copyright issues that arise out of digital technology developments. The purpose of this paper is to provide a focus for discussion at the consultation workshops. 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 ("ISP") liability for copyright infringement;
- The need for legal protection for technological protection measures and electronic rights management information;
- The need for additional legal protection for non-original databases; and
- Exceptions and limitations to the rights provided in the Act.
8. This paper sets out what the Ministry sees as the main questions arising under each of these issues. It then seeks to provide some options for addressing these questions, drawing on both local and international experiences. This paper simply provides a resource to guide further analysis of the issues. The research process is ongoing, and the paper is neither complete nor definitive.
9. It is important to note that the Ministry has not reached any conclusions on these matters and the views expressed are not official government policy. The purpose of these consultation workshops is to draw on the knowledge and experiences of those involved in the copyright field in order to better inform the policy making process.
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
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