Communication of Works to the Public
28. The Act currently provides copyright owners with exclusive rights to broadcast (transmit by wireless means) a work or include it in a cable programme service (transmit by wired telecommunication). The discussion paper asked a number of questions concerning the adequacy of these existing rights to control communication of copyright works to the public by wireless or wired means, including the Internet.
29. The first question concerned whether the right to include a copyright work in a cable programme service includes the right to control the communication of that work to the public via the Internet, for example through webcasting, and whether the Act should be amended to include specific reference to such a right. While some respondents considered that the existing cable programme service right might be sufficient, respondents (both copyright owners and users) agreed that the Act requires amendment to provide owners with an explicit right to control the communication to the public of works over the Internet. In order to bring this about, the majority of respondents favoured replacing the existing broadcasting and cable programme service rights with a broad technology-neutral right. This right would cover broadcasting, inclusion in a cable programme service, webcasting and any future method, including any combination of technologies.
30. The second set of questions asked whether there is a need to extend protection to webcasts (as transmissions to the public via the Internet) as copyright works under the Act (if webcasts are not already protected as a cable programme transmission). The Act currently provides copyright protection to broadcasters and cable programme service providers for signals that carry programme content, that is independent of copyright that might exist in the content carried by transmission signals. Fifteen of the 20 respondents who addressed this question considered that webcasts should be protected as separate copyright works under a new technology-neutral category of "communication" works. Those that opposed an extension considered that copyright protection is not required as an incentive to engage in webcasting activities, which they suggested are low cost and comparatively easily undertaken in comparison to broadcasting and cable programme service activities.
31. The third set of questions asked whether copyright owners should be provided with an exclusive right to control the "making available" of their works on computer servers for users to access (and download at their convenience) through interactive on-demand systems, such as the Internet (a "making available right"). Respondents generally considered that the Act should provide copyright owners with the ability to control how their works are made available. The majority of respondents supported the inclusion of an express "making available right" as part of a new technology-neutral right of communication to the public.
32. The final set of questions addressed whether section 88 of the Act, which provides that broadcasts made from a place in New Zealand can be included freely in a cable programme service (except where licensing arrangements are in place), should be retained. Respondents were fairly equally divided on whether to retain (and extend to other means) or remove the retransmission provision. Of those that supported extension to satellite pay-TV service providers, most agreed that any retransmission should be required to be free of charge and unencrypted. A number of submitters argued that the section should not allow retransmission through the Internet, as this would threaten the geographical nature of most programme licensing.
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