General Comments by Respondents
10. Most respondents considered that some changes to the Act were required to take account of developments in the use of digital technology. Respondents also generally agreed that the balance currently struck in the Act between the interests of owners/creators and users should be maintained in the digital environment. Both owners and users argued, however, that digital technology had in practice shifted that balance in favour of the other. Copyright owners pointed to the ease of copying and distribution that digital technology provides. Users of copyright material were concerned about technological copy-protection measures which restrict access and over-ride permitted acts. They were also concerned about limits on public access to information and unreasonable restrictions on making use of copyright material.
11. Nearly all the submissions received in response to the discussion paper considered that the review is timely in considering the copyright implications of digital technology. While a few respondents considered that the Act does not require amendment, most were of the opinion that the Act required some changes to take account of developments in the use digital technology. Submissions were, however, polarised over what policy objectives the Act should aim to achieve in the digital age, and what amendments are required to meet these objectives.
Policy Objectives
12. Many respondents endorsed the principles underlying the Ministry's copyright policy framework that was outlined in the discussion paper. Most agreed that the key policy objectives of copyright law are to:
- encourage the creation, development and dissemination of copyright works;
- provide reasonable access to copyright material; and
- provide for certainty concerning how copyright material can be exploited and used.
13. A large number of submissions also supported the statement in the discussion paper that copyright law should balance the interests of owners and users. Many also agreed that the balance between owner and user interests that exists in the print/analogue world should be maintained in the digital world. These respondents agreed that digital technologies do not affect the principles that govern copyright and that the same policy objectives and substantive rules should generally apply, unless there is a good reason for departure from them in relation to a particular situation.
14. Some respondents (both copyright owners and users), however, considered that the differences between digital and print/analogue technologies necessitate a different approach to the laws that govern the distribution and use of copyright works in the digital environment. Some submissions from user groups elaborated on this by suggesting that an "alternative paradigm", which guaranteed access to information, was required to preserve that balance between the interests of copyright owners and users reflected in the print/analogue world.
15. A number of respondents considered that digital copyright policy should seek to provide balanced copyright law that supports such things as the development of domestic creative industries, the promotion of New Zealand's cultural identity and the growth of trade in copyright goods with our trading partners. Some submissions emphasised the link between copyright policy and the development of New Zealand's "knowledge economy", including the further development of an electronic commerce infrastructure. Submissions from copyright owners pointed to the role copyright law can have in facilitating their use of digital technology, while user groups referred to the effects copyright law can have on the timely and affordable access to information resources. Some copyright users also stated that care was needed to ensure that copyright law does not impede the technical processes that underlie the operation of information technology systems.
The Need for Amendments to the Act
16. Submissions reflected opposing views concerning the threats posed by digital technology and how digital technology might have affected the balance copyright law seeks to provide between the interests of owners and users. A number of copyright owner groups considered that digital technology, by making unauthorised copying and distribution easier, has shifted the balance in favour of users. Copyright users, however, contended that digital technology has shifted the balance in favour of owners by providing means to restrict access and over-ride "access rights" provided under the Act.
17. A number of submissions (mostly from copyright owners) stated that the Act has some serious limitations in respect of its application to digital technology and, therefore, requires substantial amendment to ensure technological-neutrality. Some of these suggested that the Act, in its present "print-orientated" form, might not provide business with the necessary confidence to engage fully in exploiting new markets for copyright material in electronic commerce. They suggested that copyright owners might be deterred from distributing their works in the digital environment, where it is more difficult for copyright owners to control the distribution of and access to their works.
18. Legal experts and academics were largely of the view, however, that the Act is generally technologically neutral, and that care would need to be taken with any proposed amendments to ensure the Act does not become unduly technologically specific.
19. Copyright owners had concerns about the manner in which users, in particular libraries and educational establishments, might already be utilising digital technology in relation to copyright works and the effects this could have on copyright owners' revenues.
20. Some submissions from users and academics contended that increased protection for copyright owners should only be considered if such protection will benefit the New Zealand community as a whole, including the role of public institutions in education and the preservation of knowledge.
21. A number of copyright users were concerned about the effects of technological protection measures ("TPMs") applied by copyright owners on the ability of users to access copyright works and information generally under reasonable terms and conditions. Users also expressed concerns about the effects of copyright law on freedom of expression, research, education and the availability of information and other material to the "public domain". Some of these submissions referred to amendments made in response to digital technologies in other countries, such as the United States, and urged that the government "learn from" ("and not repeat") "mistakes" made in those countries.
22. Some submissions from users indicated concern about the possibility of separate standards of protection being introduced for digital material, the potential for increased copyright protection and the application of digital technology (through digital databases and TPMs) to restrict access to information. Particular concerns were expressed about the application of copyright law to restrict the very activities that are required to read or view copyright material in the digital environment.
23. Submissions from both copyright owners and users emphasised the potential provided by digital technology to enhance the availability of copyright works and information generally. Submissions from owners pointed to potential new markets and distribution models (such as pay-per-view on-demand) that digital technology allows and the reductions in cost and effort needed to reproduce and distribute works. Submissions from users pointed to the potential for digital technology to allow a greater number of people (including the "print disabled") to access material in new and more convenient formats, at lower cost.
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