Part One: Introduction
A. Why Is the Copyright Act Being Reviewed?
1. Technological change and the development and adoption of new technologies frequently raise issues concerning the applicability, adequacy and operation of existing laws and regulation. This is particularly true of copyright law, itself a product of technology. From the English Copyright Act of 1709 (the Statute of Anne), the history of copyright shows the legislative framework developing and evolving in response to technological change. The printing press, the gramophone, the player-piano, broadcasting, the photocopier, the video recorder and the computer - copyright has evolved to meet the demands of new technologies and ensure that copyright protects the interests of copyright creators and owners, users of copyright materials and the wider public interest.
2. Since the Copyright Act 1994 was enacted digital technology has allowed rapid advances in the development and use of information technologies. Possibly the most obvious example of the effect of digital technology on communication and business is the rapid expansion of the networking of computers that we now know as the Internet. Digital technology has, however, had effects felt beyond computer technology and the Internet. It has allowed advances in fields ranging from communications, media products, information management and home appliances, to commercial transactions and transportation.
3. The increasing use of digital technology in commerce, information technology, communications and the entertainment industries has particular implications for copyright laws. Digital technology allows copyright works to be copied, manipulated and disseminated with a minimal of effort and cost that cannot be matched using analogue technologies. Key questions are whether the current Copyright Act, which does not include any reference to the word "digital", is capable of dealing with the use of works in the digital and on-line environment, and whether the Act needs to be reformed to meet the demands of copyright creators, owners and users. Copyright creators and owners have concerns about their ability to control digital copying and communication of their works over the Internet. Copyright users have concerns about the effects of digital technology in restricting reasonable access to copyright material.
4. Some of the concerns about copyright and the development and increasing use of digital technology are new variants on problems and issues that have caused concern in the past, such as the nature of reproduction. Other concerns relate to the specific capabilities of digital technology, such as the development of interactive, on demand access to works, and technological means of protecting and managing copyright works.
B. The Importance of Copyright to the Government's Goals
5. Copyright is the basis of the legal protection afforded to what are often referred to as the "creative industries", particularly the entertainment industries, broadcasting, other media and the arts. Copyright is, however, not restricted to the creative or entertainment industries. The protection of copyright extends beyond works of literature, art, music and drama to things as diverse as the design for a lavatory pan connector, the layout of a betting slip, the design in a knitted wool jersey and complex multi-media productions. Copyright is relevant to any industry that involves design or planning, the production of consumer goods or the communication of ideas or information.
6. A modern and effective copyright regime is therefore an important ingredient in achieving the government's stated Key Goals, particularly those designed to:
- grow an inclusive, innovative economy for the benefit of all New Zealanders;
- strengthen national identity; and
- improve the skills of New Zealanders.
7. An effective copyright regime is also a key element in government initiatives aimed to achieve these goals in the areas of electronic-commerce, arts, culture and heritage, economic and industry development and education.
C. The Purpose of This Discussion Paper
8. The purpose of this discussion paper is to inform interested parties about issues concerning copyright and digital technology and invite views on whether, and if so how, the Copyright Act should be amended to address any of these issues. It represents the first step in public consultations on copyright issues that relate to digital technology, electronic-commerce and the copyright implications of the Internet.
9. A number of key issues have been identified by the Ministry and are discussed in this paper. Possible approaches and, where appropriate, potential legislative options are identified in respect of these issues. There are undoubtedly other copyright issues that arise as a result of digital technology and other options that might arise in respect of the issues discussed. The Ministry welcomes submissions that identify other issues or potential options that arise as a result of digital technology.
10. It is, however, important to bear in mind that the present review is restricted to issues raised by digital technology with particular emphasis on issues raised by the development of the Internet. It is not the purpose of this review to undertake a comprehensive revision of the Copyright Act 1994 in its entirety. New technologies do not affect the principles that govern copyright, although they might affect their application to new commercial and user practices that arise. The copyright implications of these developments are the subject of this paper.
11. In this regard, it should be noted that this paper does not deal with issues relating specifically to the protection of Māori cultural heritage. While this issue is clearly of importance to New Zealand, it is outside the scope of this paper. The focus of this paper is on the impacts of digital technology. These impacts are likely to be generic to all creative works, rather than culture-specific. The protection of Māori cultural heritage is, however, being addressed in a number of other ways. The World Intellectual Property Organisation (WIPO) is currently undertaking a programme of work on genetic resources, traditional knowledge and folklore. New Zealand is an active participant in these proceedings. Within New Zealand, the Waitangi Tribunal is also considering issues relating to Māori cultural and intellectual property rights under the WAI 262 Indigenous Flora and Fauna Claim. These processes will inform further development of appropriate protections for Māori cultural heritage, and will be the subject of separate consultative processes.3
3Another issue that is outside the scope of this review is the parallel importation of copyright works. The Ministry published a
discussion paper on parallel importing in relation to music, book, film and software products in December 2000.
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