Part Three: Reproduction Rights
27. The Act provides copyright owners with the exclusive right to copy a work in relation to every description of a copyright work.4 "Copying" is defined as including reproducing or recording a work "in any material form" and, in relation to a literary, dramatic, musical, or artistic work, "storing the work in any medium by any means".5
28. Two issues arise:
- Storage and conversion into digital form, and
- Transient copying.
A. Storage and Conversion into Digital Form
(i) The Issues
29. The first issue that arises in relation to the reproduction right concerns the existing definition of "copying" (which determines the scope of the reproduction right granted to copyright owners) and its application to the conversion to, or storage of, works in digital form. The reference to "material" reproduction in the definition of copying could raise a question about whether the definition is broad enough to allow copyright owners to prohibit unauthorised copying of material in digital form and the conversion of print or analogue works into digital form ("digitisation").
(ii) The New Zealand Situation
Storage
30. Most submissions agreed that the term "storage in any medium by any means" is wide enough to cover storage in a digital form. This includes digital recording or storage on a computer disc, which is a tangible medium. Some of these submissions suggested that this part of the definition of copying should also apply to sound recordings, films, broadcasts, cable programmes and typographical arrangements of published editions (not just literary, dramatic, musical, or artistic works). Expanding this part of the definition would, however, be unnecessary if storage of these types of works amounts to "reproducing or recording" in "any material form".
31. Legal experts considered that the statement that copying includes "storing [a]... work in any medium by any means" is sufficiently broad to cover copying those types of works in a digital form where the digital copy is stored on a computer disk or in any other means of storage.
Conversion (First Digitisation)
32. There was general agreement across submissions that copyright owners should be able to control digital copying and the "first digitisation" of works that exist in print form or analogue formats. There was, however, divergence as to the extent of control allowed under the existing definition of copying.
33. Most legal experts submitted that digital copying and digitisation constitutes copying under the existing technology-neutral definition and that there is no need to make specific amendments that refer to digital technology. A number of submissions also expressed concerns about any amendment, noting that a specific reference to digital copying might raise doubts about whether other forms of storage constitute copying under the Act and jeopardise continued technological neutrality of a key definition.
(iii) The International Situation
WIPO Internet Treaties
34. Whilst the WIPO Internet Treaties do not include any specific references to the reproduction right, the agreed statements on the WIPO Copyright Treaty
concerning Article 1(4) contain the following statement:
The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention.
Australia
35. Section 31(1) of the Australian Copyright Act 1968 ("the Australian Act") provides owners of copyright in literary, artistic, musical and dramatic works with the exclusive right to "reproduce the work in a material form". "Reproduction" is defined in section 21 of the Act. Section 21 does not, however, provide a general or exhaustive definition, but the use of the word "reproduction" rather than "copy" suggests that an infringement in relation to "works"6 will also occur where reproduction is in a different form or media from the original. The relevant sections concerning the exclusive rights of copyright owners in other subject matter (including sound recordings, films and broadcasts) refer to "making a copy of" the relevant subject matter.7
36. What constitutes reproduction under Australian law is, as in New Zealand, found in the Commonwealth and American case law, which requires objective similarity and some form of causal connection between the work and the reproduction. The reference to "material form" in subsection (1) is, however, widely defined in the Australian Act:8
[M]aterial form, in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage from which the work or adaptation.
37. The Australian Act has been amended9
to state that copying includes conversion into a digital format (including "first digitisation"). Provisions were also introduced that provide the potential for the award of higher damages for copyright infringement involving unauthorised digitisation by stating that "additional damages" can be awarded in relation to civil infringements that involve copies made by first digitisation.10
. Criminal penalties that specifically apply to offences involving the first digitisation of copyright material were also increased.11
Ireland
38. Ireland's Copyright and Related Rights Act 2000 ("the Irish Act"), provides an inclusive definition of "copying"12 which includes, in relation to any work: "storing the work in any medium" (section 39(1)(a)(i)). This section is based on the United Kingdom approach, but removes the reference to "material form". The accepted view in Ireland appears to be that this definition covers all aspects of copying, including digital copying.
Canada
39. Section 3(1) of the Copyright Act (R.S. 1985, c. C-42) ("the Canadian Act") provides the owner of copyright in a work with: "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever" (emphasis added). Section 18 provides "the maker of a sound recording" with a similarly worded right and section 21 provides a "broadcaster" with a sole right to fix or "reproduce any fixation" of communication signals13 it broadcasts.
40. The consensus in Canada is that the phrase "in any material form whatever" is broad enough to cover digital storage and reproduction. Guidance on the application of the reproduction right to new technologies can be taken from both the United Kingdom and, despite the different "definitions" of what constitutes a "copy", the United States, where case law has clearly established that digital copies made in computers and other devices are reproductions.
41. The scope of the reproduction right is, therefore, not under consideration as part of the digital review of copyright currently being undertaken in Canada, other than in relation to whether exceptions should be provided for transient copying and ISP liability.
European Union
42. Article 2 of the Directive on the harmonisation of certain aspects of copyright and related rights in the information society14
("Copyright Directive") provides for an exclusive reproduction right for authors and related rights holders. It includes "direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part" for authors and all neighbouring rights holders, i.e. performers, record companies, film producers and broadcasters. Virtually all relevant acts of reproduction, whether on-line or not and whether in material or immaterial form, are covered. The right has been designed to ensure legal certainty in the EU about the meaning of reproduction.
(iv) Options
43. The key issue that arises in this section is whether the scope of the current reproduction right (and the definition of copying) is sufficient to allow copyright owners to control the digital reproduction of their works. Analysis suggests that digital copying (and first digitisation) is already covered by the existing technology-neutral definition of copying ("reproducing or recording a work in any material form"). It has been suggested, however, that greater certainty could be provided through defining material form.
44. The following options were identified from analysis of submissions:
- No change to the Act on the basis that it covers digital storage and first digitisation.
- Add a specific reference to digitisation or the conversion of print or analogue copies of works to digital form in the definition of copying.
- Define "material form" in the Act (section 2 - interpretation) to include digital copying or storage.
Possible exceptions:
- Allow users to transfer a copy of a legitimately purchased copy of a copyright work via the Internet or other telecommunications system to a "second hand" purchaser where the original digital copy is subsequently destroyed- as the subsequent sale of a physical copy is permitted.
- Consider exceptions to the copyright owner's reproduction right in relation to copying for personal use (format shifting) and/or in relation to libraries and educational institutions, claiming there is an increasing need to provide access to material on-line.
B. Transient Copying
(i) The Issues
45. The second issue that arises in relation to the reproduction right concerns the definition of "copying" and whether it should be amended to explicitly address incidental and temporary copies that are automatically made by computers and communications networks as a result of technical processes.
46. "Transient copying" automatically takes place, for example, in the Random Access Memory (RAM) of a computer every time a computer program is accessed and displayed on screen. Numerous copies of this nature are automatically made across computer systems to facilitate the communication of content via communications systems such as the Internet (these copies are for the most part made without the knowledge of the sender).
(ii) The New Zealand Situation
47. The Act does not expressly address the question of whether the making of temporary or incidental copies, which are often a result of the operation of digital technologies such as computer and communications systems, infringes the exclusive right of a copyright owner to authorise copying of copyright material.
48. Some respondents (including legal experts) considered that "transient copying" is covered by the existing definition of copying and would constitute "storage in a medium" or "recording in a material form". Others suggest that all transient copying should be excluded from the definition of copying. Whilst respondents were divided on whether transient copying is already covered (or should be covered) by the reproduction right, the vast majority considered that the Act should state whether or not transient copies are included.
49. Rightholders have expressed concerns in relation to the possibility of providing a blanket exception for all transient or incidental copying. It is argued that such an exception may limit their ability to enforce copyright, particularly in relation to "on-line" and software piracy.
50. Some respondents expressed the view that, in placing a copyright work on a website, a copyright owner grants an implied licence to the public to make the necessary transient copies that would enable the work to be accessed. Whilst this may apply at a point in time, the future applicability of any implied licence is uncertain in that it can be revoked at any time by a rightholder. Further, the limits of such a licence are unclear.
51. With the exception of some rightholders, most submissions considered that some allowances should be made for transient copying. Submissions were, however, split over what types of transient copying should be permitted acts. Some of the discussion revolved around the definition of a technical process and whether it should cover automatic copying undertaken by computer systems to improve network efficiencies ("proxy caching").
52. Users argued that they should not be held liable for transient copying that is automatically undertaken as part of the technical processes involved in making authorised use of works. An extension of this view was a suggestion that some form of exception or defence be available for "innocent" infringers of copyright. There was some support for this by rightholders in situations where the infringer did not obtain an "economic benefit" from the infringement.
(iii) The International Situation
WIPO Internet Treaties
53. As noted in the section on storage above, the agreed statements on the WIPO Copyright Treaty concerning Article 1(4), establish that the reproduction right as set out in Article 9 of the Berne Convention applies in the digital environment.
Australia
54. The Copyright Amendment (Digital Agenda) Act 2000 ("CADA") introduced a new exception to the Australian Act15 in relation to the exclusive right of reproduction for temporary reproductions made as part of the technical process of making a communication. The exception is intended to include temporary reproductions made in the course of browsing or viewing copyright material on-line, and in certain limited types of caching. The exception is limited to temporary reproductions made in the course of non-infringing communications.
United Kingdom
55. Section 17(2) of the Copyright, Designs and Patents Act 1988 contains the following definition:
Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means.
European Union
56. Article 5 provides for a mandatory exception to the exclusive reproduction right in relation to "temporary acts of reproduction". Article 5.1 provides that temporary acts are exempted from the reproduction right where:
- They are transient or incidental;
- They form an integral and essential part of a technological process whose sole purpose is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or other subject matter to be made; and
- They have no independent economic significance.
Ireland
57. Under the Irish Act the scope of the reproduction right expressly includes "the making of copies which are transient or incidental to some other use of the work".16
The Irish Act also provides a wide exception to the reproduction right in relation to "a transient and incidental copy of that work which is technically required for the viewing of or listening to the work by a member of the public to whom a copy of the work is lawfully made available (emphasis added).17
58. These exceptions probably cover proxy caching and will, therefore, need to be amended to comply with the Copyright Directive, which limits the availability of an exception for transient copying to an "intermediary" (cutting out Intranets and other local server or PC caching).
(iv) Options
59. The key issue concerning transient copying is whether there is a need to amend the definition of copying to take account of temporary or incidental copies (that are automatically made by computers and communications networks as a result of technological processes)?
60. It seems that transient copying is probably already covered by the existing definition of copying. Liability for unauthorised copying could therefore arise in relation to temporary and incidental copies. As a result, the majority of submissions responding to this issue considered that the Act should clearly state whether or not transient copying is included.
61. There seemed to be strong support from respondents for making some allowances for transient copying, but disagreement as to exactly what types of transient copying should not give rise to liability for infringement. The option that transient copying gives rise to copyright infringement, but with exceptions provided in relation to copying automatically undertaken as part of a technical process involved in making an authorised use of a work attracted general support. Consideration of this option would require further work concerning the definition of "technical process", and the issue of proxy caching.
62. The following options were identified from analysis of submissions:
- No change to the Act.
- Amend the definition of copying to state that transient copying is "copying" for the purposes of the Act.
- Amend the definition of copying to state that transient copying is not copying for the purposes of the Act.
63. If transient copying is copying for the purposes of the Act:
- Provide no exceptions for transient copying.
- Restrict an exception to copying automatically undertaken as part of a technical process involved in making an authorised communication of a work (would exclude execution of a computer program).
- Provide an exception in relation to copying automatically undertaken as part of a technical process involved in making an authorised use of a work (including viewing and communication) and/or improving network efficiencies ("proxy caching").
- Require knowledge of transient copying for liability to arise.
- Excuse all liability for transient copying.
- Provide a presumption that in the absence of notice to the contrary, copyright owners have consented to transient copying where they have consented to the primary activity.
4 Copyright Act 1994, section 16(1)(a)
5 Ibid, section 2(1) - definition of "copying".
6 Under the Copyright Act 1968 (Australia), the term "works" refers to literary, artistic, musical and dramatic works. Sound recordings, films, broadcasts and typographical arrangements are not "works", but rather "subject matter other than works". In New Zealand, all descriptions of copyright subject matter are referred to as "works": see Copyright Act 1994, section 14.
7 Copyright Act 1968 (Australia), sections 85, 86 and 87.
8 Ibid, section 10(1).
9 Ibid, section 21(1A)
10 Ibid, section 115(4).
11 See ibid, section 132(6AA), which states that a maximum applicable fine of 850 penalty units (and/or 5 years imprisonment) applies to offences that involve an infringing copy "made by converting a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form". A maximum fine of 550 penalty units applies to offences that involve other classifications of infringing copies. A penalty unit currently equates to AU$110.
12 Copyright and Related Rights Act 2000, Section 39 (1)(a)(i).
13 "Communication signal" is defined as radio waves transmitted through space without any artificial guide, for reception by the public - Copyright Act (R.S. 1985, c. C-42) (Canada), section 2.
1415 Copyright Act 1968 (Australian), section 43A.
16 Ibid, section 39(1)(a) (ii). This was copied from the Copyright, Designs and Patents Act 1988 (UK).
17Copyright and Related Rights Act 2000 (Ireland), section 87(1)
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