Personal tools
You are here: Home → InternetNZ Activity → Submissions → Archive → Older → Property Organisation Negotiations Response
 

Property Organisation Negotiations Response

Sent by the Secretary of Commerce to The Internet Society of New Zealand, 3 December, 1996.

Dear Mr Higgins

Re: WIPO Draft Treaties on Databases and Literary and Artistic Works

Thank you for your fax of 29 November 1996 expressing the concern of the New Zealand Internet community about the draft treaty on protection of databases to be discussed at the WIPO Diplomatic Conference currently taking place in Geneva.

As you are probably aware, the draft treaty on databases only emerged very late in the discussions on the copyright and related rights issues incorporated in the two other draft treaties for discussion at the Diplomatic Conference. The suggestion of a separate treaty on databases was first made in early 1996 with a draft being circulated in September.

The Ministry considers that the draft treaty on databases should be discussed with interested parties. We agree that the draft treaty raises a number of policy issues which should be carefully addressed before New Zealand could indicate support for such a treaty. The New Zealand position at the Diplomatic Conference will reflect the following points:

  • The Treaty has only just been proposed and there has not been any time in New Zealand to undertake full consultation on the draft treaty nor to consider all the implications of it.
  • Further, consideration and consultation is required on some of the proposed provisions, for example:
    • Whether a treaty in this area is warranted.
    • If a treaty is warranted, the scope of the treaty.
    • The appropriate term of protection.
    • The implications of implementing such a treaty in respect to the Privacy Act 1993.

I note that you also raise issues with three articles in another draft treaty for discussion at the Diplomatic Conference, ie the draft treaty concerning the protection of literary and artistic works. Several of the points which you make will be referred to in the New Zealand position on these articles, namely:

  • In terms of article 7, New Zealand will be seeking clarification of the way in which "temporary" and "transient" (article 7(2)) are being defined.
  • In terms of article 12, New Zealand will support the principle of the article but will be clarifying whether, in article 12(1), the word "only" has the effect of narrowing the scope for limitations and exceptions. In respect to article 12(2), New Zealand will be seeking clarification on the effect of this provision. That is, whether the provision has the effect of amending Berne Article 9(2) so that limitations and exceptions apply to all rights and not just reproduction rights.
  • In terms of article 13, New Zealand will support this proposal in principle. However, as you point out, there are issues which need to be pursued in relation to this article. First, New Zealand's approach is that, as in New Zealand, the offence should be aninfringement of copyright and not a criminal offence. Second, the test in article 12(3), ie "primary purpose or primary effect of which is to circumvent", should be clarified. Potentially the test could encompass devices which were not intended for infringing purposes. New Zealand law requires intention and is likely to continue to do so if this were made a criminal offence. Accordingly, New Zealand will seek wording similar to that in our Copyright Act 1994 (section 226(2)) of "knowing or having reason to believe".

The Ministry will evaluate the outcomes of the Diplomatic Conference in terms of the benefits for New Zealand before a decision is made to sign up to any of the draft treaties. As part of this evaluation, the Ministry invites your organisation and other interested parties to discuss the outcomes of the Diplomatic Conference in the New Year. This discussion could include preliminary discussion on the draft treaty on databases. However, any further work on the draft treaty for protecting databases would involve wider consultation with your organisation and other interested parties.

I hope this information is of use to you. Please feel free to contact Rebecca Lucas or Andrew Wierzbicki at the Ministry for further information.

Yours sincerely
Paul Carpinter
Secretary of Commerce

cc Hon John Luxton, Minister of Commerce
Hon Don McKinnon, Minister of Foreign Affairs and Trade
Hon Maurice Williamson, Minister of Communications

© 1997 The Internet Society of New Zealand

Document Actions