FQ&As about the Copyright (New Technologies) Amendment Bill
[ Last Updated 16 February 2009 ]
Format Shifting
Why is there a format shifting provision and why is it limited to sound recordings?
The new format shifting provision responds to the concern that people want to transfer music they have legitimately bought onto different devices to take advantage of new technology. It also recognises this has been common practice for a long time.
The markets for audio visual works and music are evolving, they are different. There are numerous business models for audiovisual works that do not apply to music. Theatrical release, commercial rental (both physical and online models), free-to-air TV and pay TV do not have counterparts of any significant extent for music. It is also unlikely that consumption of audio visual works "on the move" using mp3 players and the like will ever be as ubiquitous as for music. It is not, therefore, possible to simply apply the conclusions reached about music to audio visual works.
Does the Act specify any special conditions that must be adhered to when format shifting?
Yes, you may only copy music that has been lawfully acquired for your personal use or the personal use of a member of the same household where you live. You can only make one copy for each music playing device that you own (that is your CD player, your iPod etc), Furthermore, you must retain both the original copy of the music from which the format shift copy was made and the copy you make under the format shifting provision.
The changes to the Act do not legitimise the copying of music for friends or online file-sharing; both actions remain an infringement of copyright.
Can the copyright owner specify any conditions for format shifting?
Yes, the default position under copyright law allows copyright owners and users to contract out of the format shifting exception. If music is bought subject to conditions, for example, the number of copies that can be made for personal use, then those conditions will override the format shifting exemption in the Act.
Technological Protection Measures
What is a TPM?
Technical protection measures (TPMs) are technical locks copyright owners use to guard or restrict the use of their material stored in digital format, such as encryption software.
Why do we need new provisions relating to technical protection measures, including the introduction of a criminal offence provision?
With digital technology, it has become easier to plagiarise and make illegal copies of copyrighted work. This is resulting in increased losses for copyright owners. The Bill addresses this by providing copyright owners with a more comprehensive right to protect their works against increased piracy.
What types of TPMs are protected under the new law?
The new law protects TPMs that control any of the exclusive rights of the copyright owner under the Copyright Act, such as the right to copy or the right to communicate to the public, which extends to webcasting. For example, a device that protects material from being copied would be protected because the copyright owner has the exclusive right to make a copy. Devices that control the mere access to copyright material are not protected.
What behaviour is prohibited?
It will be prohibited to deal with devices, means and information enabling people to circumvent copyright protections. The new law also introduces a limited criminal offence provision that will apply where there has been large-scale commercial dealing in devices, means and information enabling people to circumvent copyright.
Does the new law outlaw multi-zone DVD players, which can bypass region encoding?
No. The supply and use of devices allowing the circumvention of devices that merely control the access, such as regional zone access protection, would not infringe the TPM provisions. This means copyright users continue to be able to view or use legitimate non-infringing copies of works, such as DVDs or computer games.
How will consumers be able to exercise any of the permitted acts where TPMs have been applied to a work?
Consumers will continue to be able to circumvent a TPM to undertake a permitted act because there is no prohibition on possessing and using a circumvention device. Consumers are not, however, able to make, sell or distribute a circumvention device if they know or have reason to believe that the device will be used to infringe copyright.
If a consumer cannot practically undertake a permitted act, they can approach the copyright owner for assistance. If the owner fails to respond to the consumer's request within a reasonable time, the Bill allows for the engagement of a prescribed library, archive or educational establishment to exercise the permitted act on the behalf of the user.
ISP Liability
What should a copyright owner do if they discover a New Zealand website contains material that infringes his or her copyright?
Provide the ISP with a notice of infringement outlining what material is considered to infringe copyright. The ISP is required to consider the notice of infringement and as soon as possible after receiving the notice either delete the allegedly infringing material or prevent access to it. If the ISP fails to take prompt action after receiving the notice, it could be liable for copyright infringement even if it was not directly responsible for the posting of the infringing material on the website.
Must the notice of infringement be in any particular form or contain specific information?
No, the notice of infringement needs to only provide the ISP with sufficient information for it to become aware that the material in question infringes copyright. In order to make it simpler for copyright owners to prepare a notice of infringement, a template for the notice will be prescribed in Regulations to the Copyright Act.
What is the ISP required to do when it receives a notice of infringement?
The ISP must assess the content of the notice and make a decision as to whether the material on the website is likely to infringe copyright. If the ISP makes a decision to delete or prevent access to the material in question, the ISP must give notice to the user that the material has been deleted or access to it prevented.
Whether the material in question is returned to the website or access to the material allowed by the ISP becomes a matter for the user and copyright owner to resolve.
Is the notice of infringement they only way to get infringing material removed from a website?
No, the copyright owner may alternatively apply to the courts for an injunction requiring the ISP to remove or prevent access to the infringing material.
Is there a risk that copyright owners will use the notice of infringement as a means to prevent or stop criticism of themselves or their work?
The Act provides that fair dealing with a work for the purposes of criticism or review of that or another work or of a performance does not infringe copyright in the work if such fair dealing is accompanied by a sufficient acknowledgement. The ISP is not required to delete or prevent access to material that does not infringe copyright.
In addition, a variety of offences already exist, for example under the Fair Trading Act 1987 and the Crimes Act 1961, to protect against fraudulent use of the notice and take down provisions.
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