Te Rōpū Whakahau
[ Last Updated 3 November 2005 ]
Date Received: 2003-02-21
Original version: Digital Copyright: Position Paper Submissions: No. 17: Te Rōpū Whakahau [105KB PDF]
Copyright (Digital Technology) Submissions
Submission to the Ministry of Economic Development by Te Rōpū Whakahau on the Digital Technology and the Copyright Act 1994 Discussion Paper
Hinureina Mangan
C/- Te Wānanga o Raukawa
PO Box 119
OTAKI
Contents
Ngā Kaiwhakahau (the executive of Te Rōpū Whakahau) notes the recent discussion on the revision of the Copyright Act 1994 and would like to respond to the position paper Digital Technology and the Copyright Act 1994. We are also keen to participate in this discussion and to be involved in any subsequent development of this policy.
Let me introduce Te Rōpū Whakahau. Te Rōpū Whakahau is the professional association for Māori who work in libraries, archives and information services. Te Rōpū Whakahau was born from a need to provide professional and cultural support to Māori who worked in libraries throughout New Zealand. There was also a need for Māori voices to inform policies and practices relating to the care of Māori material in libraries and archives, and the provision of library and information services generally.
Te Rōpū Whakahau was formed in 1992 as a formal network and ran as a special interest group of of the Library and Information Association New Zealand AotearoaTe Rau Herenga o Aotearoa (LIANZA). In 1995 Te Rōpū Whakahau entered into a formal agreement with LIANZA and became an independent incorporated society the following year.
Te Rōpū Whakahau works to ensure:
- the Treaty of Waitangi is promoted in library and information work
- libraries and information services are promoted to Māori clients
- Māori professional development in te reo and tikanga, information technology, management and dissemination of information, and research is encouraged
- the support for and increase in qualified Māori library and information workers.
Te Rōpū Whakahau supports the extension of copyright to digital technology. We agree that legislation should be balanced and fair. Like the Ministry, we are in favour of clear and transparent legislation, and that based on technological neutrality is likely to remain relevant and require less amendment. We commend the Ministry in the process and the content of this discussion. While we acknowledge the need to protect the work and intellectual output of individuals or groups and that they do have a right to a fair return on their intellectual endeavours and a need to consider and balance this with the public and national interest. We agree strongly with the distinction made between the duplication of material for personal and commercial gain. On the whole we consider that a change to the Copyright Act to include digital technology must not create a market that is unfairly biased in favour of the publishers, or allows greater protection than that extended to existing media. One particular concern is that the amendment does not offer a greater right to censor and restrict access to information.
While agreeing in principle to the general thrust of the position paper, we would like to raise the issue of cultural property. This issue is discussed in the paper "Fishing with New Nets: Māori Internet Information Resources and Implications of the Internet for Indigenous Peoples" by Alastair G. Smith Victoria University of Wellington. Cultural property is "the rights of cultural and ethnic groups to keep control of the knowledge and information that has been created over generations by the group, and which can't be invested in an individual and protected by conventional intellectual property mechanisms." We agree with the statement that there..."needs to be a recognition that cultural values of indigenous peoples may not be those of the largely Western Internet community. In redefining intellectual property law for the electronic environment, we need to take account of the concept of cultural property. Digitization of cultural objects must be done in consultation with the cultural owners. Accuracy and authority issues need to be resolved if the `virtual library' is to become a reliable repository of human knowledge, and steps need to be taken to give all people, including those from indigenous cultures, access to the Web."
We contend that there is need to develop a category of collective ongoing and enduring rights that will ensure that Māori retain the right to control the approriate expression and transmission of our cultural heritage. This control is one that can't be invested in an individual and protected by conventional intellectual property mechanisms such as copyright.
A. Reproduction Right
(i) Storage and Digitisation
Te Rōpū Whakahau support the contention made by the Ministry "that 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". We note and agree with the Ministry "that any specific reference to digital copying does not call into question whether other forms of storage constitute copying and thereby jeopardise the continued technological neutrality of the definition of copying."
(ii) Transient Copying
Te Rōpū Whakahau agrees that the current definition of copying is sufficiently broad to include transient copying.
B. Communication Right
(i) Technology-Neutral Right of Communication
We are keen to see that good legislation is developed and adopted by the Government. We agree that technology-neutral definitions that focus on the use of published works will help ensure the legislation adopted remains relevant.
(ii) Webcasts as Works
We agree.
(iii) Cable Retransmission of Free-to-Air Broadcasts
We agree.
C. Internet Service Provider Liability
We support the Ministry's recommendation excluding ISPs from some liability, but allowing a content owner the option of seeking injunctive relief in respect of information stored and transmitted by ISPs.
(i) Definition of "Internet Service Provider"
We agree that this would be useful. Inserting a definition of "service provider", or some similar term into the Act should establish greater clarity.
(ii) Transient Copying and Caching
We agree that this would be useful. Inserting a section, noting that the mere provision of physical facilities for enabling or making a communication does not itself constitute an infringement of copyright, or an authorisation for such infringement, into the Act should establish greater clarity. It is also reasonable to adopt the conditions outlined by the Ministry.
(iii) Secondary Infringement Provisions
We agree that a "constructive knowledge" test would be useful in determining an ISP's liability under the secondary infringement provisions.
D. Technological Protection Measures
(i) Scope of Section 226 (Copy and Access Protection)
We agree with the Ministry that the Act retain its focus on copy control measures, and not provide Copyright Owners with new rights. As noted by the Ministry there are other legal measures available to Copyright Owners.
(ii) TPMs - Actual Use or Provision of Means of Circumvention
We agree with the Ministry that the Act retains its focus on the manufacture of devices or means, and publication of information, and not extend liability to the act of circumvention itself.
(iv) TPMs - Subjective or Objective Knowledge Requirement
We agree with the Ministry's recommendation.
(v) TPMs - Offence Provisions
We agree with the Ministry's recommendation.
E. Electronic Rights Management Information
We support the Ministry's recommendation that any definition of ERMI included in the Act not encompass the tracking functions of ERMI.
F. Non-Original Databases
We support the Ministry's recommendation.
G. Permitted Acts and Exceptions
(i) Application of Existing Exceptions to the Digital Environment.
We agree that the existing exceptions should apply in the digital environment, unless cogent reasons exist to the contrary. There may, however, be a requirement for limitations and safeguards that are not necessary for print and analogue works.
(ii) Fair Dealing
We agree that there is a need for clarity
(iii) Educational Institutions, Libraries and Archives
Archiving and Preservation
We support the digital archiving of relevant material, particularly with regard to ensuring these institutions are able to meet their education and teaching needs. We also believe that the national interest is safeguarded by the digital archiving of relevant material as this will ensure that loss or damage to these items is mitigated. We agree that the primary purpose of these collections is to support the teaching and research needs of the nation and that it is reasonable that those digital copies not be made available to the public unless the original work is held by these institutions.
Digitisation and Making Available
Te Rōpū Whakahau would argue that photocopying and digitisation do essentially the same thing, which is to provide or make available a copy of an item to a client. In the case of digitisation this can be restricted to authorised clients. Restricting access to registered users should then mean as long as a client is an authorised user, secure remote access should also be allowed.
Interloan
Most interloan requests are user specific, of interest to a small number of people and are not worth digitising. However, for frequently requested items digitisation offers enough benefit to justify the cost to digitise the item. It also speeds up the supply/transmission of information. We consider that it is unrealistic to place a barrier in the efficient transmission of knowledge by preventing the digitisation and subsequent interloan of items that are already held by a library.
Caching
We support the Ministry's proposal; however we would contend that for this exemption to have real value the period should at least match the length of time during which the related course is offered.
(iv) Time Shifting
We agree with the Ministry's preferred approach.
(iv) Format Shifting
We support an exception that would allow the owner of a legitimately purchased sound recording to make one copy of that sound recording (and the musical work that it contains) in each format for his or her own personal and domestic use. However we believe this provision should be extended to include other media whose use by individuals is of a similar nature
(v) New Exceptions
We agree with the recommendation.
H. WIPO Internet Treaties
We agree with the recommendation and suggest that we adopt international standards at a rate that matches the uptake of our competitors and trading partners.
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