NZ Digital Copyright Report to Council 04/07/03
New Zealand Digital Copyright
The New Zealand Government has published at http://www.med.govt.nz/buslt/int_prop/digital/cabinet/index.html its proposed policy with regard to digital copyright. This is the latest step in a number of documents that have been consulted on. This is the first policy though which has been endorsed at Cabinet level.
EXECUTIVE SUMMARY
The Executive Summary states "It is proposed that the potential liability of Internet Service Providers for both primary and secondary infringement be limited in certain circumstances, to ensure continued access for consumers to internet services at reasonable cost. An exception is also recommended to allow caching by Internet Service Providers, in order to provide efficient services."
This is welcome and sensible. While the definition of limited needs to be clarified, the recognition of limited liability is a good positive step.
Another key aspect is "It is proposed that the section dealing with the making, importing, hiring and selling of devices or information designed to circumvent "copy protection" mechanisms. be expanded to cover all rights provided to copyright owners, not just copying, but that it should maintain its focus on devices, means or information that are intended to facilitate infringement of copyright. It is also recommended that an offence provision be introduced for large-scale commercial dealing with such devices, means or information".
This proposal is of some concern, as it can be a very subjective judgement as to the intention of a device. Whether file sharing programs like Kazaa would be illegal under this proposed section could depend on how a Judge views the intention of the program. It also could cover many hacking tools which have legitimate use.
REPRODUCTION RIGHT
Section 18 specifically proposes "It is also recommended that a specific and limited exception to the reproduction right be provided for "transient" copies made by computers or communication networks (such as the Internet) as a result of automatic or inevitable technical processes. These processes are generally designed to increase efficiency. Examples of transient copying, to which the exception would apply, would include the routine temporary storage in the random access memory ("RAM") of a computer for the purpose of executing an authorised program or browsing the World Wide Web."
This is sensible and necessary and InternetNZ should support this.
ISP LIABILITY
Section 24 states "Copying is central to the function of the Internet and to the services provided by Internet Service Providers ("ISPs"). ISPs, therefore, face potential liability for both primary infringement of copyright (through transient copying and transmission of infringing material) and secondary infringement (primarily through hosting of infringing material on behalf of third party subscribers). The Act is currently silent on the issue of ISP liability. It is recommended that changes be made to the Act to limit the liability of ISPs in certain cases, thereby ensuring that ISPs continue to provide their services and that cost-effective access to the Internet for New Zealanders continues."
Section 25 states "Where an ISP merely provides the physical facilities that enable a communication to take place it is recommended that this not constitute infringement. It is also recommended that liability be limited for some forms of caching undertaken by ISPs in order to provide more efficient Internet services. Where an ISP hosts material posted by third parties, secondary infringement should be limited where the ISP does not know that the material infringes copyright and upon obtaining knowledge takes action to remove or disable access to it."
The broad thrust of these recommendations are supported. It is worth noting that the proposed changes will probably not change the law greatly as much case law has already established limited liability, but it is more reassuring to have this in statute.
It would be useful to get clarification from the Government as to whether "limited liability" means "no liability", and if not what the difference is. The whole area of an ISP being required to take action upon learning of an alleged copyright breach is a complex one. Issues to be clarified are how long is reasonable period of time before action, what level of proof should an ISP require to "know" that such material is a copyright breach, what constitutes action is asking the user to remove it a satisfactory first action?
These issues should be canvassed with ISPs, and a meeting with officials arranged to discuss concerns.
TECHNOLOGICAL PROTECTION MEASURES
Sections 26 to 32 deal with this. While the paper does propose to allow copyright owners the ability "to take action in respect of devices, means or information where circumvention could enable infringement of all the copyright owner's exclusive rights, not just copying" it does also state that "Copyright owners should not, for example, be able to take action in respect of circumvention devices, means or information where the purpose of the circumvention (and the provision of the device, means or information) is to enable a user to exercise a permitted act, or to view or execute a legitimate non-infringing copy of a work".
Specific exemptions are also proposed for "error correction in computer programs, interoperability of software, encryption research and similar purposes" which is welcome. Consultation with industry on whether there should be further exemptions would be desirable.
The Government proposes that in the case of large scale commercial dealing in circumvention devices, there be a maximum sentence of five years imprisonment on top of any fines up to $150,000.
Whether imprisonment is an appropriate punishment for breaches of this nature, is highly debatable.
ARCHIVING AND PRESERVATION
It is proposed that preservation by digital means, including format shifting (for example from print to digital) be enabled for libraries and museums, as long as digitisation of whole collections doesn't occur where there is no current need for preservation or replacement.
The nature of internet archives such as www.archive.org or even Google, and how this Act could affect them is unclear.
CONCLUSION
Overall the proposed policy appears to be relatively sensible and positive for internet stakeholders. There are a number of areas though which at the minimum need to be investigated more fully to see if there are unintended negative side-effects for Internet users and providers.
It is recommended that InternetNZ Council:
- Approve this paper as a discussion paper.
- Write to all ISPs informing them of the Cabinet Paper on Digital Copyright, with a copy of the discussion paper.
- Ask Legal & Regulatory Committee to co-ordinate consultation with internet users and providers on what InternetNZ's response to the paper should be.
- Send in an initial letter to the Minister indicating support for the sections dealing with limited liability of ISPs, and requesting a meeting with her officials to discuss other areas of the paper.
- Authorise Legal & Regulatory Committee to seek legal advice on the proposed law changes
- Consult with ISPs on drawing up a "Best Practice Statement on dealing with complaints of copyright infringement" to help minimise legal liability for third party infringements.
