Copyright bill: clause for concern

A lot that is good in the Copyright Amendment Bill, says InternetNZ

“There is a lot that is good” in the Copyright (New Technologies and Performers’ Rights) Amendment Bill, says InternetNZ president Colin Jackson.

The bill is currently in its first reading stage and Jackson points to the fact that the bill explicitly makes legal format-shifting (copying music from, say, a bought CD to the buyer’s MP3 player) and also limits internet service providers’ liability when it comes to users’ copyright breaches.

However, Jackson did emphasise when he spoke to Computerworld (on December 12) that InternetNZ is still in the early stages of considering the bill and had not yet held substantive discussions regarding various points of concern with the Ministry of Economic Development or other relevant government parties.

Nevertheless, Jackson says that InternetNZ is very concerned about provisions which would levy criminal charges and heavy penalties against those dealing in devices or instructions designed to circumvent technological protection mechanisms (TPMs).

While these features are reminiscent of the much criticised Digital Millennium Copyright Act (DMCA) enacted in the US, the local proposed legislation is “not as severe”, he says.

“The activities criminalised here are a much smaller subset than those in the DMCA.”

When he spoke to media recently about the potential of over-zealous copyright protection to “suppress all kinds of legitimate valuable work”, Jackson says he was thinking more of the US legislation than of the New Zealand draft bill, which is still much more of an unknown quantity.

The Dimitry Sklyarov/Elcomsoft case was an early — and concerning — test of the DMCA, which saw Sklyarov convicted for merely speaking about his company Elcomsoft’s technology which can break encryption on Adobe eBooks.

The DMCA has also been used to justify technology obstructing the use of printer cartridges not provided by the printer vendor and even of cut-price remote controls for automated garage doors. Such exercises seem to be more are more about protecting commercial monopolies rather than copyright, says Jackson.

Such provisions have been dubbed “paracopyright” and are much commented on by New Zealand and overseas legal sources. In theory, backed by criminal sanctions, copyright owners could implement “protections’ that go far beyond the provisions of copyright law, and so prevent users from getting round them unless they go to a great deal of trouble.

At an internet safety and security symposium earlier this year, Judge David Harvey suggested that protection could eventually become more a matter of private treaty between vendor and user than statute law (Computerworld, July 17).

InternetNZ will, of course, put forward a submission on the bill, when it goes to select committee hearing after its first reading, says Jackson.

A number of media and ICT industry commentators, such as former Computerworld journalist Russell Brown and Bruce Simpson, in his Aardvark online column, have reacted strongly against the proposed legislation.

However, Ken Moon, of intellectual-property law firm A J Park, is more optimistic about the provisions of the draft bill. Provision is made for circumvention of a TPM in order to engage in a permitted act, he points out. So “fair dealing” when it comes copyright works is still protected, as much in the electronic world as it is when it comes to physical documents.

The draft bill has a section aimed at facilitating such fair dealing. This could include, for example, making a copy of parts of the work for private study or quoting portions in a review. This advises users on the appropriate course of action and says that “circumvention of the mechanism” should be arranged with a “qualifying person”. This person is variously defined as “a prescribed library or archive or an educational establishment”.

However, the bill states elsewhere that “the rights that the issuer of a TPM [protected] work has … do not prevent or restrict the exercise of a permitted act”, but there are no qualifications regarding how such acts.

The issue of qualification also comes up in the clause covering ISP liability. Only “qualified” ISPs are protected from liability for copyright breach by a user who stores material on its servers.

To qualify, an ISP “must have adopted and reasonably implemented a policy that provides for the termination of the accounts of repeat infringers”, says the preamble to the bill.

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