New Zealand Braces for Amended Copyright Law to Take Effect

Among the amendments to the Copyright Act of 1994 are that ISPs will be required to disconnect “repeat infringers” and music fans can only burn 1 album copy per listening device, and must always retain the original.

New Zealand’s Associate Commerce Minister Judith Tizard has announced that recent amendments to the Copyright Act of 1994 will soon take effect.  The amendments are intended to help ensure that New Zealand’s copyright law “reflects current advances in digital technology.”

“The Copyright (New Technologies) Amendment Act 2008 will ensure our copyright laws keep up to speed with the dynamic nature of digital technology,” said Tizard.

The new copyright provisions are part of the Labour-led government’s goal of “promoting innovation, creativity and economic growth” and are meant to “support the needs of business by improving clarity and certainty over the scope and enforcement of intellectual property rights.” 

Tizard emphasizes the importance of the new legislation taking effect: “A robust, up to date intellectual property rights regime is an essential part of an innovative, growing economy. This Act helps protect the intellectual property of creative workers in the face of changing technology, so that both creators and viewers of cultural products can all go on enjoying these things that enrich our lives. It’s about ensuring that New Zealand music and movies can keep being made.  We recognize that some people (wrongly) believe that all music, movies and games are ‘free’ on the internet. This illegal downloading is really damaging to our creative industries.”

One of the more controversial amendments to to the Copyright Act is section 92A which contains a requirement for ISPs to “…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.”

Other Key Provisions of the Act

Internet Service Providers (ISPs)

  • It clarifies the liability of Internet Service Providers “ISPs” when it comes to copyright infringement.
  • It introduces a limited exception from copyright infringement where the ISP merely provides the physical facilities to enable a communication to take place.
  • It provides that there is no liability for an ISP when storing and caching infringing copyright material when it deletes or prevents access to infringing material as soon as possible after it becomes aware that the material is likely to infringe copyright. To facilitate ISPs becoming aware of infringing material, regulations outline what information is to be provided when a notice of infringement is submitted to ISPs.

Fair Dealing Exceptions

  • It updates the existing permitted acts for fair dealing and educational establishments, libraries and archives.
  • Educational establishments, libraries and archives can create and store digital copies of works on the Internet or other electronic retrieval systems, provided certain conditions are met.
  • It provides a new limited exception to copyright infringement for Educational Resource Suppliers under certain conditions. This will help schools to make greater use of audio visual copyright material without infringing copyright.

Format Shifting

  • It provides a format shifting exception for copying sound recordings for personal use or the personal use of their household provided certain conditions are met. This exception for format shifting of sound recordings aligns the law with the public’s needs for listening to music, although it still takes into account the protection afforded by copyright to the copyright owner.
  • Two key conditions to the format shifting exception is that the original purchaser must not make more than one copy for use on each device owned and the purchaser must retain both the original version of the sound recording purchased and the copy made. This provision does not legitimize copying of CDs for friends or online file-sharing, both these actions remain an infringement of copyright.

Computer Program Exceptions

  • It provides that a lawful user of a computer program does not infringe copyright in it by observing, studying or testing the functions of the program in order to determine the ideas and principles that underlie the program.

Technological  Protection Measures (TPMs)

  • More comprehensive protection to TPMs in response to the increased risk of copyright piracy by giving copyright owners the ability to take action in respect of devices, means or information where circumvention could enable the infringement of all the copyright owners’ exclusive rights, and not just copying (e.g. webcasting).
  • It introduces criminal offence provisions in limited circumstances where circumvention of a TPM is for large-scale commercial dealing in copyright material.

Tizard said that the Act will come into force as a whole on October 31st, 2008 with the exception of section 92A which comes into force on February 28th, 2009. She said the reason for the delay is to enable rights holders and ISPs time to reach an agreement on how it can be effectively implemented. 

Copyright holders are naturally happy with the amendments and are counting the days until it takes effect and safeguards their bottom line.

“We are pleased to see this important piece of legislation being enacted, providing the opportunity to enhance new ways to bring filmed entertainment to New Zealand audiences, and to protect the exciting creative content that is being developed in New Zealand,” said Tony Eaton, Executive Director of the New Zealand Federation Against Copyright Theft (NZFACT). “We are looking forward to working with ISPs and other rights holders to ensure the law works to protect our creative industries and the jobs they create. Protecting copyright is good for innovation, good for business and good for New Zealand.”

Mike Ellis, President and Managing Director, Asia-Pacific for the MPA, cites the legislation as an example for other countries to observe.

“This legislation goes a long way towards protecting copyright owners in the digital environment and provides a good example for other governments in the region and around the world who may be contemplating similar issues,” said Ellis. “The New Zealand Government’s recognition of the shared rights and responsibilities for the secure distribution of intellectual property rights over the internet is indeed welcomed and timely, and raises performance measurements for the world community to an even higher level.”

My biggest anticipation is for when people start permanently losing their Internet access. In an increasingly “wired” world where countries are struggling to compete in the world of high technology, and where the Internet is the main tool for education, research, and communication, does it really make sense to hamper those efforts by terminating the ability of people to take part in it all?

It will also be an interesting test case for what ISPs can expect when users no longer need high end Internet packages when faced with undue scrutiny or outright disconnection. E-mail and video streaming certainly don’t require a 1.5Mbps DL or 15Mbps UL connection speed so they can expect to lose quite a lot of business if they do begin disconnecting repeat file-sharers.

Stay tuned.

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