The Copyright (New Technologies) Amendment Bill updates the Copyright Act 1994 and “will maintain the balance between protection, access and use already established in the original Act,” according to associate commerce minister Judith Tizard.
Controversy has focused on three parts of the amendments: the liability of internet service providers (ISPs) when hosting copyright infringing content, technological protection measures (TPMs) designed to restrict access to digital work, and format shifting provisions that allow consumers to move music from one device to another.
In August, a parliamentary select committee removed a section from the bill that required ISPs to have a process in place for disconnecting people accused of infringing copyright online. But this provision was later reinstated by a supplementary order paper.
The bill now says that an ISP “must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer”.
Keith Davidson, executive director of InternetNZ, a digital rights lobby group, criticized the rule, saying: “In particular the adoption of the discredited US-style notice and takedown regime for ISPs dealing with alleged customer infringement is hugely disappointing.” InternetNZ had called for a less stringent “notice and notice” system to deal with online copyright infringement.
In the section dealing with TPMs the government’s aim has been to allow protection measures that prevent infringement, but not those that enforce regional zoning of DVDs, according to Ken Moon, a consultant with AJ Park in Auckland.
The Amendment Act states that a TPM does not include a device that “only controls
any access to a work for noninfringing purposes”. The word “only” is a late addition to the bill and a copyright owner could get round this restriction if controlling access is only part of proposed TPM, according to Moon.
The Act states that a person selling or dealing in TPM circumvention devices could be fined NZ$150,000 ($119,000) or face up to five years in prison.
But the amendments do allow a person to use a TPM circumvention device if they have legitimate reasons for doing so. If the person cannot get round the TPM they can write to the copyright owner asking for permission and, if the request is turned down or ignored, may ask a qualified person such as a librarian or archivist to remove the TPM.
Legislators have allowed music listeners in New Zealand to shift songs from one format to another, such as from a CD to an MP3 player, but did not extend that right to other media, such as video, something that Davidson described as “a great pity”.
Tizard said that the new law forms part of a government programme to update New Zealand’s IP laws. The government is hoping to pass amendments to the Trade Marks Act 1953 this year, but a long-awaited new Patents Act to replace the 1953 is unlikely to be passed by Parliament in 2008, according to Moon.
