Ministry of Economic Development Home| Contact MED|


Jump to Site Navigation Links
 
 
 

Links to this page were:

Section Subnavigation Links:

Part Eight: Permitted Uses and Exceptions


Internal Working Paper

Regulatory and Competition Policy Branch
[ Last Updated 20 October 2005 ]


A. Application of Existing Exceptions to the Digital Environment

(i) The Issues

241. There are benefits for society as a whole not just in protecting copyright but also in providing access to copyright material. Thus, all copyright regimes contain exceptions to the exclusive rights of copyright authors and owners, with a view to encouraging socially beneficial uses of copyright works.

242. The first issue that arises in relation to these permitted acts and exceptions is whether they should apply in their entirety in the digital environment. If this is considered inappropriate, the next question is which exceptions should apply to digital works and what changes, if any, are required to the scope of these exceptions. One aim of the CADA amendments in Australia, for example, was to maintain the balance between the interests of copyright owners and users, by providing for an appropriate extension of limitations and exceptions into the digital environment.

243. The second issue is whether the Act should be amended to provide that TPMs cannot be used to override or prevent the exercise of permitted acts provided for in the Act.82 Related to this are concerns about the implications of contract for copyright law. So-called "shrink wrap" and "click wrap" contracts are increasingly used by copyright owners to extend their rights beyond those for which copyright provides and to limit the use of the material by users. Both TPMs and contract, therefore, have the capacity to interfere with the public interest balance that is sought in copyright law.

(ii) The New Zealand Situation

244. The permitted acts and exceptions appear in sections 40 to 93 of the Act. Some of the most significant are fair dealing for criticism, review and news reporting,83 fair dealing for research and private study,84 permitted acts in relation to educational establishments,85 libraries and archives86 and for public administration.87 It is possible that some of these exceptions may already be sufficiently technology neutral and that no changes are required. Others, however, are tied to particular technologies.88

 245. As noted in Part Six , the Act already contains a provision prohibiting interference with TPMs, and one issue for the review is whether this legal protection should be extended. TPMs can, however, prevent users from carrying out activities that they would otherwise be entitled to do under the exceptions and limitations in the copyright legislation. Currently, there is no explicit exception from the anti-circumvention provision for users who are carrying out permitted acts. Nor is there any statement in the Act about the ability to contract out of the permitted uses.

246. The majority of submissions on the discussion paper considered that the current "balance" achieved between the rights granted to copyright owners and the permitted uses provided for in the Act is appropriate, and that any amendments should seek to maintain that balance. The majority also agreed that the current permitted acts and exceptions in the Act should be carried into the digital environment, although some considered that it was not appropriate in respect of all permitted acts. Some users expressed concern about the impact of TPMs on fair dealing rights, although these were not further articulated. Concern was also expressed about the impact of "shrink wrap" and "click wrap" contracts on users' ability to make use of the permitted act exceptions.

(iii) TRIPS, WIPO and the Berne Convention

247. A number of submissions raised the "Berne Three-Step Test"89 as the yardstick by which to measure the appropriateness of exceptions in the digital environment. Several points should be made in regard to the Three-Step Test:

  • The Three-Step Test was introduced during the revision of the Berne Convention in Stockholm in 1967. In this context alone, it applies only to limitations or exceptions to the reproduction right. The three requirements are that any exception:90
    • Is limited to certain special cases;
    • Does not conflict with the normal exploitation of the work; and
    • Does not unreasonably prejudice the legitimate interests of the rightholder.
  • The WIPO Internet Treaties also incorporate the Three-Step Test.91 The Agreed Statements to both treaties note that exceptions already considered appropriate in the analogue and print world can be carried forward into the digital world. Under the Internet Treaties, only new exceptions or limitations are, therefore, arguably required to be examined through the Three-Step Test.92
  • New Zealand is a signatory to the Rome revision of the Berne Convention, which does not contain the Three-Step Test. The test was, however, incorporated into the TRIPS agreement,93 to which New Zealand is a party. Under both TRIPS and the WIPO Internet Treaties, the test does not only apply to the reproduction right but to all rights granted under those instruments.
  • TRIPS is the main source of New Zealand's international intellectual property obligations, and our copyright regime, and intellectual property regime more broadly, is TRIPS compliant.

(iv) Options

248. Access to copyright material is perhaps even more significant to a small country like New Zealand, which is geographically isolated and which is an aggregate net importer of intellectual property. In the drive for innovation, it is important to recognise that much innovation in New Zealand is cumulative, built on the foundations laid by earlier intellectual endeavours. Copyright exceptions may play an important role in this cumulative creativity.

249. Equally, it is important for our creative industry development and innovation policy goals that copyright owners are able to exercise effective control over their work and to obtain an appropriate commercial return for their investment. To this end, permitted acts should not be so broad as to undermine those rights or impinge unduly upon commercial exploitation of copyright works.

250. The following options have been identified from analysis of submissions:

  1. No change to the Act, leaving the permitted acts and exceptions as they currently are.
  2. Extend some permitted acts and exceptions to the digital environment "as appropriate".
  3. Incorporate into any provision preventing circumvention of TPMs an exception for activities covered by the permitted acts and exceptions provided for in the Act.94
  4. Incorporate a provision prohibiting the contracting out of permitted acts.95

251. As noted in the discussion paper, there would need to be a demonstrable reason for not extending the existing permitted acts to the digital world (if they do not already apply), so that users are not deprived of the legitimate opportunity to use all copyright material, whether print, analogue or digital.

B. Fair Dealing

(i) The Issues

252. There are a number of issues that arise in relation to the fair dealing exceptions in the Act:

  • Are any amendments required to the existing fair dealing provisions to ensure reasonable access to copyright works in the digital environment for news reporting, criticism or review and research or private study?
  • Are there new fair dealing exceptions that should be added to the Act to deal with aspects of digital technology?

(ii) The New Zealand Situation

253. The Act currently provides fair broad fair dealing exceptions for specific purposes,namely news reporting, criticism and review96 and research and private study.97 In effect, certain "dealings" with copyright works without the copyright owners' permission for these socially useful or beneficial purposes are deemed "fair".

254. Much of the case law on these provisions comes from the UK, which has substantially similar exceptions. There has been considerable litigation in the UK involving these provisions and two general points can be noted:98

  • Fair dealing only applies in respect of news reporting, criticism, review, research and private study, and the provisions do not provide a general exception for any fair dealing with a work.
  • The courts have tended to interpret the fair dealing provisions strictly, with the defendant bearing the onus of showing that his or her actions are covered by the relevant provisions. This onus has sometimes been difficult to discharge.

255. The majority of owners and publishers who made submissions on the discussion paper considered that no extensions to fair dealing were required to accommodate digital technology. Users generally argued that the fair dealing provisions should be clearly made to apply to the digital environment.

(iii) The International Situation

WIPO Internet Treaties

256. As noted above, the starting point for exceptions and limitations under the WIPO Internet Treaties is the Berne Three-Step Test, with which any new exceptions not already applied in the non-digital environment would have to comply. No specific reference is made to fair dealing or fair use exceptions.

Australia

257. Although "fair dealing" is a broader concept under the Australian Act, it does include provisions similar to those in the New Zealand Act.99

Canada

258. The nature of the fair dealing provisions in the Canadian Act is similar to those in both New Zealand and the UK. They cover research and private study, news reporting, criticism and review.100 Elements of the Canadian provisions are technology-specific, but the current Canadian review does not appear to be entertaining plans to introduce substantial changes or additions to the limitations and exceptions. Again, as in New Zealand, the application of the provisions to digital technologies is not explicit, but given the broad manner in which the reproduction right is defined, it is likely that it covers digital copying.101

 

United States

259. The US Act contains a broad "fair use" provision.102 In addition to a non-exhaustive list of examples of what may constitute fair use,103 the US Act also sets out four factors to be considered when determining whether a use of a work amounts to a fair use:

  • The purpose and character of the use, including whether such use is of a commercial nature or for non-profit education purposes;
  • The nature of the copyrighted work;
  • The amount and sustainability of the portions used in relation to the work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.

260. This provision has been the subject of significant litigation. Much of its scope is defined through case law and the courts have, for the most part, been willing to give it wide application. The result will, inevitably though, depend on the facts of the individual case, the use to which the work is being put and the application of the above four factors.104

European Union

261. In addition to a compulsory exception for transient or incidental copies,105 the Copyright Directive provides an exclusive list of exceptions and limitations to the reproduction right106 and the communication right107 that Members States may provide for in their national law.108 None of these are specifically worded as a "fair dealing" or "fair use" exception. It is left to Member States to implement the exceptions as they deem appropriate, as long as they comply with the requirements of the Copyright Directive.109 The introduction of such exceptions is made subject to the Berne Three-Step Test.110

United Kingdom

262. The Copyright Directive covers most current permitted acts provided for in the CDPA. The fair dealing provisions in the CDPA111 appear to comply with the Copyright Directive. They are substantially similar to those in the New Zealand Act.

263. The Copyright Directorate of the UK Patent Office is currently in the process of analysing the impact of the Copyright Directive on UK law and drafting the implementing regulations. The public consultation process has recently been delayed and the Directorate has advised that it will begin consultation as soon as possible.

(iv) Options

264. The following options in respect of the fair dealing provisions have been identified from analysis of submissions:

  1. No change to the current fair dealing provisions in sections 42 and 43 of the Act.
  2. Revisit sections 42 and 43 with respect to digital technology.

C. Educational Institutions, Libraries and Archives

(i) The Issues

265. In terms of the educational exceptions, there are a number of issues that arise:

  • Are amendments to the current educational permitted uses or new permitted uses for educational institutions required in respect of the digital environment? For example, in relation to the use of the Internet and other digital means of communication.
  • Do the quantitative restrictions in section 44 need be altered to accommodate digital and Internet based information?
  • Are there any particular changes or additions that need to be made to the educational exceptions for distance learning?

266. There are also a number of issues that arise for libraries and archives:

  • Are amendments to the current libraries and archives permitted uses or new permitted uses for libraries and archives required in respect of the digital environment?
  • Should libraries be freely able to digitise works in their collections and provide access to that material at on-site terminals, by email or by the Internet? Should libraries be able to provide simultaneous access to digital material to more than one user?
  • To what extent should libraries and archives be freely able to digitise material for archival purposes? For example, should any exception for digital archiving apply only to the National Library?

(ii) The New Zealand Situation

267. There are, at present, exceptions in the Act for educational institutions112 and libraries and archives.113 These are exhaustive and cover a fairly limited range of activities.

268. Submissions from owners and publishers on the discussion paper generally argued that no further amendments were required for educational institutions, libraries and archives. Several educational institutions, particularly those involved in distance education, argued for a general right to make, store on computer systems (including "proxy caches" on servers) and transmit digital copies for educational purposes. It was also argued that educational institutions should be able to engage in format shifting and adaptation for educational purposes without the author or owner's permission.

269. The majority of respondents to the relevant questions in the discussion paper agreed that libraries should be able to make digital copies of their collections for research and private study and archival purposes, although some suggested conditions that could be imposed on such an exception.114 Some suggested that a format shifting exception should be introduced for libraries and archives to allow content to be migrated to more convenient or modern formats.

(iii) The International Situation

WIPO Internet Treaties

270. As noted above, the starting point for exceptions and limitations under the WIPO Internet Treaties is the Berne Three-Step Test, with which any new exceptions not already applied in the non-digital environment would have to comply. No specific reference is made to exceptions for educational institutions, libraries or archives.

Australia

271. The CADA amended the term "reasonable portion", which is used throughout the Australian Act, including the library and archive sections, to make it more appropriate to the digital environment. The CADA inserted a new definition of "reasonable portion" into the principal Act115

in respect of literary and dramatic works in electronic form, deeming a reasonable portion to be 10 percent of words. The deemed "reasonable portion" test does not apply to the communication right.

272. The CADA also amended section 49 of the Australian Act to allow libraries to make and communicate electronic copies of material to users on request. Each such communication must be accompanied by a copyright notice in the prescribed form and the library's electronic reproduction must be destroyed upon fulfilling the request. The Australian Act also provides for inter-library supply of electronic material where that material is not "commercially available". Again, there is an obligation to attach a copyright notice and destroy any electronic reproduction made in fulfilling the request.

273. The CADA also introduced provisions allowing libraries and archives to make electronic reproductions for preservation purposes. Preservation reproductions of artistic works may be made available on "dumb" terminals116 on the premises in certain circumstances. As noted at paragraph 173 , the CADA also amended the Australian Act to allow for circumvention of TPMs by libraries and archives in order to carry out activities covered by the library and archive exceptions.

274. Unlike our Act, reproduction and communication of works by educational institutions is dealt with in the Australian Act by a compulsory licensing regime.117 Again, these provisions have been amended to take account of material in electronic form.

Canada

275. The existing library and archives provisions in the Canadian legislation are broadly equivalent to those in the New Zealand Copyright Act. The existing archiving provision is quite broad, covering maintenance of the library's own or another library's, archive's or museum's collection and replacement of obsolete formats, subject to commercial availability.118 All intermediary copies, created for these purposes or in response to research and private study request, must be destroyed. Libraries in Canada have expressed a desire to make parts of their collections available in electronic form and to have further archiving rights, and these matters are being considered as part of the Canadian review process.

276. As with our Act, there are limited exceptions for educational institutions119 and there is no ability to make multiple copies of whole or substantial parts of works under these exceptions. There has been some concern expressed that the exceptions are not as technologically neutral as they could be. Educational institutions have also requested a browsing exception for student use at on-site terminals.

United States

277. The US Act specifically includes use for the purposes of teaching (including multiple copies for classroom use), scholarship or research as fair use.120 On the basis of this exception, teachers are able to make copies of whole or substantial parts of copyright works in the course of instruction, including the making of multiple copies, which is not allowed in the New Zealand teaching exceptions. It is perhaps questionable, however, whether the current wording of the fair use exception, based on "multiple copies for classroom use", would cover putting copyright materials online or on a CD or some other format for distance learning or Internet based teaching purposes. There is also an exception for certain performances and displays by students and instructors.121 This section is, however, explicitly based on "face-to-face teaching activities", criteria that are clearly not met in the online or distance learning environment. The US Copyright Office, under section 403 of the DMCA, conducted a study of distance learning, with a report issued in May 1999 recommending various changes to accommodate distance learning methods. The Technology, Education, and Copyright Harmonization (TEACH) Bill122 was introduced in March 2001 to enact these recommendations. It would appear that the Bill has been passed by the Senate and the Senate Committee on the Judiciary.123

 

278. There is a further exception provided for reproduction by libraries and archives.124 Libraries are authorised to photocopy materials from their own collections for users. For example, they may photocopy a single article from a periodical or a chapter of a book and give the copy to a user.125 When obtaining photocopies of copyright works from other libraries through inter-library loan, libraries must comply with the conditions defined in the Act.126 The basic requirement is that the library must not receive copies in "such aggregate quantities as to substitute for a subscription to or purchase of such work". The section was amended by the DMCA to deal with electronic materials. A library or archive can now make a copy of a work if the existing format is obsolete, so long it is not made available to the public outside the library or archives premises.127

 

European Union

279. In addition to the research and private study exceptions, the Copyright Directive provides for exceptions for educational establishments, libraries and archives.128 These include "use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals" in public libraries, archives, museums and educational establishments.

United Kingdom

280. The educational, library and archive exceptions in the CDPA are substantially similar to those in the New Zealand legislation.129

There are, however, more restrictions on reprographic copying (i.e. by facsimile process like photocopying130 ) and, in fact, in respect of copying literary, dramatic, musical or artistic works for the purposes of instruction, only manual copying is permitted.131 It is likely that this exclusion of reprographic copying would also cover the copying of electronically stored works by electronic means.

132

There is, however, no such restriction on copying for the purposes of examination, and this exception applies to all types of works, not just literary, dramatic, musical and artistic.133 The section covers anything done for the purposes of an examination, and is not restricted to copying.

281. The CDPA does contain a broader exception for reprographic copying for educational establishments.

134 Reprographic copies of passages from published literary, dramatic or musical works may be made on behalf of an educational establishment without infringing copyright in the work or the typographical arrangement, so long as no more than one per cent of the work is copied in any calendar quarter. This provision does not apply if there is a licensing arrangement available.

282. There are also exemptions, which are substantially similar to those in the New Zealand Act, for libraries and archives.135

(iv) Options

283. Particularly for New Zealand, which has a small population and is geographically isolated, it is vital that educational institutions, libraries and archives are provided with exceptions to copyright in order to access and use copyright materials. As with all other areas, digital information and Internet technologies provide potentially huge benefits and conveniences to these institutions, and it is important to consider how the limitations and exceptions should apply in respect of digital information.

284. Educational institutions (including schools, polytechnics and universities), however, make extensive use of licensing arrangements, and a significant number of copyright owners obtain income from this source. It is, therefore, necessary to determine at what level of access to material by educational establishments, libraries and archives should be covered by permitted acts. Digital technology adds further factors to this assessment, for example, electronic distribution of material for distance education, electronic "lending" by libraries and access by the public to electronic library collections.

285. The following options in respect of the educational, library and archiving exceptions have been identified following analysis of submissions:

  1. No change to the current exceptions.
  2. Clarify application of the quantitative restrictions in section 44 to material in electronic form.
  3. Consider changes or amendments where appropriate, for example:
    • Provide libraries and archives with an exception for digitisation of their collections and provision of digital material through on-site terminals or the Internet.
    • Provide an exception to any provisions prohibiting circumvention of TPMs or interference with ERMI for educational establishment and/or libraries and archives to facilitate their exercise of the relevant exceptions.
    • Allow educational institutions and/or libraries and archives to keep digital copies of material requested, e.g. for research and private study, solely to service future requests.
    • Explicitly allow libraries to make digital copies for inter-loan purposes.
    • Allow libraries to provide on-site access to digital material and/or digital collections, perhaps only through "dumb" terminals.
    • Allow libraries to provide remote access to digital material and/or digitised collections.
  4. Introduce a technology-neutral fair dealing exception for educational institutions, libraries and archives (and possibly museums) rather than specific provisions relating to specific activities.

D. Time Shifting

(i) The Issues

286. Time shifting refers to the practice of recording a broadcast or cable programme for private and domestic use and solely for the purposes of watching or listening to it at a more convenient time. With the expanding use of the Internet and webcasting, the central issue is whether the time shifting exception should be applied to webcasting in a technologically neutral manner.

(ii) The New Zealand Situation

287. The current time shifting exception136 applies to broadcasts and cable programmes. As discussed above in Part Four , there is uncertainty over whether the definitions of these terms incorporate webcasting technology. The application of the time shifting exception to webcasting is, therefore, unclear.

(iii) The International Situation

WIPO Internet Treaties

288. As noted above, the starting point for exceptions and limitations under the WIPO Internet Treaties is the Berne Three-Step Test, with which any new exceptions not already applied in the non-digital environment would have to comply. No specific reference is made to time shifting.

Australia

289. Time shifting in the Australian legislation is covered by an exemption for filming or recording broadcasts for private and domestic use.137

While this section was not amended by the CADA, the definition of "broadcast" was. It does not include "a service that makes programs available on demand on a point-to-point basis, including a dial-up service".138

United States

290. The broad fair use limitation in the US Act, referred to above at paragraph 259 , has been held by the courts to include both time and format shifting for non-commercial personal use.139

European Union

291. The Copyright Directive states that Member States may introduce a private use exception "in respect of reproductions on any medium made by a natural person". This exception is restricted to activities that are neither directly or indirectly for commercial benefit.140 This broad exception would likely encompass time shifting.

United Kingdom

292. The CDPA time shifting exception141 is in the same terms as the New Zealand provision, but it is not subject to the restriction in the New Zealand Act that the recording be kept only for as long as is necessary to enable the recording to be viewed or listened to at a more convenient time. Thus, under the UK provision, a person can build up a library of recorded sound and video recordings for private and domestic use without infringing copyright.

(iv) Options

293. In assessing the various options with respect to time shifting and webcasting, it will be necessary to consider a number of factors, including:

  • What are the underlying rationales of the time-shifting exception and do they apply to webcasting? For example, is an exception necessary for webcasting if it is increasingly on-demand?
  • What would be the implications of applying the time shifting exception to webcasting? This is particularly relevant given the capacity to manipulate and alter digital material.

294. The following options have been identified following analysis of submissions:

  1. In the absence of an amendment to the definitions of broadcast and/or cable programme service that would cover webcasting, explicitly include webcasting in the time shifting exception (with limitations if appropriate).
  2. Explicitly exclude webcasting from the time shifting exception.
  3. Develop a technologically neutral time shifting exception.

E. Format Shifting

(i) The Issues

295. Despite the absence of such an exception in New Zealand, it seems that format shifting is common practice among many users of sound recordings. Other countries have responded to this by introducing "space shifting" or "format shifting" exceptions.

296. The issues that format shifting raises include:

  • Should format shifting of sound recordings for personal use be a permitted act?
  • If so, what limitations should apply?
  • Is there any economic loss to copyright owners arising out of format shifting for personal use?
  • If so, should a levy scheme apply to remunerate copyright owners for any lost revenue?
  • Should a format shifting exception extend to works other than sound recordings, e.g. films?

(ii) The New Zealand Situation

297. There is no exception at present for format shifting, for personal use or otherwise.

298. The majority of submissions on this issue supported an exception for legitimately purchased sound recordings. Reasons commonly cited in support of an exception were:

  • It is unreasonable to expect users to buy multiple copies of the same content; and
  • Such an exception would be advantageous in relation to old and soon to be obsolete formats and technologies.

299. A small number of submissions suggested that the exception should also apply to other works, e.g. films. As noted at paragraph 269 , format shifting was recommended by some for other purposes, e.g. for libraries and archives. There was, however, opposition from some copyright owners to a format shifting exception, both for sound recordings and other works. They pointed to losses incurred by copyright owners arising out of the distribution of illegally made home copies and potential hampering of developing business models, for example, on-line subscription services.

(iii) The International Situation

WIPO Internet Treaties

300. As noted above, the starting point for exceptions and limitations under the WIPO Internet Treaties is the Berne Three-Step Test, with which any new exceptions not already applied in the non-digital environment would have to comply. No specific reference is made to format shifting.

Australia

301. The Australian Act does not contain a format shifting exception.

Canada

302. The 1997 Amendment Act introduced new Part VIII to the Canadian Act. This provides a comprehensive scheme for private copying of sound recordings and the performances and musical works contained in them. Section 81 provides "eligible" authors, performers and sound recordings "makers" with a right to receive remuneration from manufacturers and importers of blank audio recording media in respect of reproduction for private use. There is no limit on the number of copies that can be made by an individual for their private use. Collected levies are distributed to eligible authors, performers and sound recording makers. The application of the levy by the Board to recordable CDs was unsuccessfully challenged in the Federal Court on the basis that only a small proportion of blank discs would be used to record copyright music.

United States

303. As noted above at paragraph 290

, the broad fair use provision in the US Act has been held to include format shifting for personal use. As private copying is exempt, a levy is applied to digital audio recording devices and media as a form of remuneration for copyright owners.142

European Union

304. As noted above, the Copyright Directive states that Member States may introduce an exception "in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly or indirectly commercial, on condition that the rightholders receive fair compensation".143 In respect of fair compensation, the Copyright Directive provides that "where the prejudice to the rightholder would be minimal, no obligation for payment may arise".144

305. Some EU countries operate private copying schemes with levy-based remuneration systems, e.g. Belgium.

United Kingdom

306. The UK Act does not contain a format shifting exception.

(iv) Options

307. Introduction of a format shifting exception would provide certainty to the law where the practice is already common and thought by many users to be legal. Arguably, a narrow exception would not detrimentally affect the economic interests of copyright owners and performers.

308. There following options on format shifting have been identified following analysis of submissions:

  1. No amendment to the Act to include a format shifting exception.
  2. Introduce a format shifting exception allowing the owner of a legitimately purchased sound recording to make one copy per format for his or her own private and domestic use.
  3. Introduce a similar format shifting exception for all works.
  4. Introduce a remunerated format shifting exception, with a levy on blank media, with royalties paid to copyright owners and performers. This could apply to sound recordings in particular or to all works.
  5. Introduce a broader "private use" type exception to the reproduction right, as in the US and the Copyright Directive, which could provide for remuneration of copyright holders and performers.

F. Need for New Exceptions

309. Specific new exceptions have been raised throughout this paper. More generally, any new exceptions would need to be considered in the context of the peculiarities of digital technology and in relation to any extended or new rights that are granted to copyright owners. The discussion paper asked whether any further permitted acts or exceptions are required to address the digital environment. Exceptions were suggested for:

  • Decompilation or reverse engineering of computer programs for the purposes of inter-operability;145Broadcasting of music recordings on television and radio without payment of a licence fee or royalty; and
  • Braille provisions to explicitly cover all format and technologies.

310. It was suggested by some copyright owners that any and all permitted acts be subject to an overarching rider that copying not be allowed for commercial gain.

311. It is worth noting that New Zealand's TRIPS obligations would require any new exceptions to comply with the Berne Three-Step Test.

82 The issue of TPMs is also dealt with above in Part Six.

83 Copyright Act 1994, section 42.

84 Ibid, section 43.

85 Ibid, sections 44 to 49.

86 Ibid, sections 50 to 57.

87 Ibid, sections 58 to 66.

88 For example, section 82 to 91 in relation to cable programme services and broadcasts.

89Article 10(2) of the Berne Convention (Paris Act) sets out three criteria against which limitations or exceptions to the reproduction right in Article 10(1) must be assessed. This is known as the "Berne Three-Step Test".

90 Berne Convention (Paris Act), Article 9(2).

91 WCT, Article 10 and WPPT, Article 16(2).

92 Agreed Statement to Article 10, WCT and Article 16, WPPT.

93 TRIPS Agreement, Articles 9(1) and 13.

94 See, for example, Copyright and Related Rights Act 2000 (Ireland), section 374.

95 Ibid.

96 Copyright Act 1994, section 42.

97 Ibid, section 43. A list of factors to which the Court must have regard in determining what constitutes fair dealing for the purposes of section 43(1) are set out in section 43(3).

98 Sterling, World Copyright Law (Sweet & Maxwell,1998) para 10.19.

99 Copyright Act 1968 (Australia), sections 40-42 and 103A-103C.

100 Copyright Act (R.S. 1985, c. C-42) (Canada), sections 29 to 29.2.

101 See para 40 above.

102 Copyright Act 1976 (US), section 107.

103 Namely, criticism, comment, news reporting, teaching, scholarship or research.

104 See, for example, American Geophysical Union v Texaco Inc 37 F3d 913 (2nd Cir. 1994).

105 Copyright Directive, Article 5(1).

106 Ibid, Article 5(2) and (3).

107 Ibid, Article 5(3).

108 Ibid, Article 6(4). This addresses the relationship between technological protection measures and the limitations and exceptions. This aspect of the Copyright Directive is dealt with above in Part Six.

109 For example, the requirement that rightholders should receive "fair compensation" for the exercise of some exceptions.

110 Copyright Directive, Article 5(5).

111 Copyright, Designs and Patents Act 1988 (UK), sections 29 (research and private study) and 30 (news reporting, criticism and review).

112 Copyright Act 1994 , sections 44 to 49.

113 Ibid, sections 50 to 57.

114 For example, lack of commercial availability, restriction to one copy only and fair remuneration.

115 Copyright Act 1968 (Australia), section 10(2A).

116 Which only allow viewing and not printing or emailing of material.

117 Copyright Act 1968 (Australia), Parts VA and VB.

118 Copyright Act (R.S. 1985, c. C-42) (Canada), section 30.1.

119 Ibid, sections 29.4 to 30.

120 Copyright Act 1976 (US), section 107.

121 Ibid, section 110.

122 107th Congress, Session 1, s.487.

123http://thomas.loc.gov/cgi-bin/bdquery/z?d107:SN00487:@@@X.

124 Copyright Act 1976 (US), section 107, section 108.

125 Ibid, section 108(d). This is similar in result to the Copyright Act 1994, sections 51 and 52.

126 Ibid, section 108(g)(2).

127 Ibid, section 108(c).

128 Copyright Directive, Articles 5(2) and 5(3).

129 Copyright, Designs and Patents Act 1988 (UK), sections 32 to 36.

130 The same definition of "reprographic process" appears in the Copyright Act 1994, section 2 and Copyright, Designs and Patents Act 1988 (UK), section 178.

131Copyright, Designs and Patents Act 1988 (UK), section 32(1).

132 Laddie et al, The Modern Law of Copyright and Designs (Butterworths, 2nd ed 1995) para 2.166.

133 Copyright, Designs and Patents Act 1988 (UK), section 32(3).

134 Ibid, section 36.

135 Ibid, sections 38 to 43

136 Copyright Act 1994, section 84.

137 Copyright Act 1968 (Australia), section 111(1) and (2).

138 Ibid, section 10(1).

139Sony Corp. of America v. Universal City Studios 464 U.S. 417 (1984), Recording Industry Association of America v. Diamond Multimedia Systems Inc 180 F.3d 1072 (9th Cir. 1999), Sega Enterprises v. Accolade 977 F2d 1510 (9th Cir. 1992).

140 Copyright Directive, Article 5(2)(b).

141 Copyright, Designs and Patents Act 1988 (UK), section 70.

142 Copyright Act 1976 (US), Chapter 10.

143 Ibid, Article 5(2)(b).

144 Copyright Directive, Recital 35.

145See, for example, section 30.6, Copyright Act (R.S. 1985, c. C-42) (Canada), Article 6 of the European Directive on the legal protection of computer programs (1991/250/EEC, 14 May 1991); section 50B of the UK Copyright (Computer Programs) Regulations 1992 and section 81 of the Copyright and Related Rights Act 2000 (Ireland).


Back to Top



Jump to main page content.