Consumers still have reasons to be fearful of proposed new copyright legislation, but for inventors and adapters of technology, the outcome is looking brighter.
Consumer champions have protested that Parliament’s Commerce Select Committee, while upholding format-shifting for copyright works in new legislation, has also allowed copyright-owners to contract out of the law.
However, adaptors’ and inventors’ rights have been protected against just such contracting out in another part of the draft legislation, concerning “reverse engineering” — the exploration of a computer program’s workings for the purpose of creating an enhanced competitor or a program to interface with the original program.
“We recommend inserting [a] new section ….to clarify that a lawful user of a computer program may observe, study, or test the functioning of the program under certain circumstances without infringing copyright,” says the committee.
The section says such acts should be legal if they are done “while performing the acts of loading, displaying, running, transmitting, or storing the program that [its user] is entitled to do.”
Therefore cleverly-crafted “test” data can legally be thrown at the program and its responses noted to disclose its workings, a process known as “black-box reverse engineering”.
Its counterpart, “white-box reverse engineering”, or actually examining and decompiling the program’s code into a more readily understandable form, should also be permitted by the legislation, the committee says, provided this is “necessary to obtain information necessary for the objective of creating an independent program that can be operated with the program decompiled or with another program” and this information cannot be obtained in any other way.
Significantly, both these provisions are armoured against individual contracting out.
The contracting out provision in the format-shifting part of the bill appears to fulfil the prediction of Judge David Harvey, a leading legal authority on ICT matters, that copyright enforcement would move towards private contract rather than specific copyright law.
Harvey made the prediction during a panel session titled, “The internet has changed copyright forever”, which was part of an Internet Safety Group symposium held last year in Wellington.
However, the reverse engineering provision staves off that movement and comes down in favour of innovators against the writers of excluding contracts.
This is a point of contention in US law. The Chilling Effects Clearinghouse, a joint venture of the Electronic Frontier Foundation and several US university law faculties, records that prohibition of reverse engineering by contract is becoming increasingly common and is sometimes enforced by “shrink-wrap” or “click-wrap” licences which are difficult for the purchaser to read in advance (www.chillingeffects.org/reverse/).
The format-shifting provision has already brought protests from New Zealand consumer champions following the Bill’s progress, but it is likely to become part of the law. InternetNZ identifies it as one of the points where its submissions to the committee failed, while bloggers Bruce Simpson and Russell Brown both criticise this provision.
It’s rather pointless having a law that anyone can contract out of, says Simpson, while former Computerworld reporter Brown suggests record companies “should perhaps be required to post a prominent warning on the front of the CD — ‘YOU MAY NOT COPY THIS MUSIC TO YOUR IPOD’ — and see how that strikes the consumer.”
The second-reading copy of the bill also includes a stipulation that anyone format-shifting a CD must retain the original in their possession. This limitation, requested by industry representatives at the committee hearings, is clearly to prevent someone copying a CD and passing it on to someone else to be copied again, potentially endlessly.
On the bright side for those seeking certainty in the changing copyright world, the committee has removed the “sunset clause” the record companies wanted, allowing format-shifting to be reconsidered after two years. “In our opinion, this subsection would create uncertainty as to whether purchasers of sound recordings recorded on older technology would be allowed to continue format-shifting those recordings for private and domestic use in the future,” the committee says.
However, The Ministry of Economic Development has advised the committee that it will review the legislation in five years’ time “to ensure that copyright legislation in New Zealand keeps pace with technological advances”.