A review of three-year-old Australian copyright law, including aspects of digital copying and communication, has identified a number of difficulties, many of which the current New Zealand moves towards reform appear to have already identified and be set on remedying.
Proposals covering caching of web pages in particular are “more liberal in New Zealand than the current Australian position”, says Matthew Hall, Sydney-based partner at Philips Fox, which is conducting the review.
The Australian legislation allows “temporary” copying into a browser cache, “in the course of a communication”, but there has been some debate about the legality of caching at an ISP or third-party site such as Akamai, to permit more efficient retrieval of the same page by several users.
Owners of copyright material have suggested to the review that if an ISP saves costs by caching in this way, then it may be effectively appropriating remuneration that would otherwise accrue to the owner.
“However, users’ interests have suggested [to the review body] that this entitlement to remuneration is an unintended windfall, because the activity does not divert a sale or other income from the copyright owner,” says Hall.
He adds, however, that there may be a slight point to the owners’ position if there is an advertisement on the page, and the advertiser pays according to the separate “hits” on the page perceived by the owner.
However, the Australian refoms, like those in New Zealand, emphasise the need for balance between owners' rights, those of users and the efficient funtioning of the "information economy".
New Zealand’s position, as enshrined in a Cabinet paper on copyright reform, is that transient copying by computers or networks “as a result of an automatic or inevitable technical process”, not limited to “communication”, should be legal.
Another batch of technical questions revolves around the definition of a “technical protection mechanism” (TPM) such as encrypting of a signal, copy protection of a CD or a “zoning” restriction on a DVD recording, and the concept of a “circumvention device”, aimed at defeating such a mechanism.
Users have expressed concern that, while they have a right to copy small portions of a work for private use under the “fair dealing” provision, they may be effectively prevented from doing so by a TPM and the impossibility of obtaining a circumvention device. Curiously, it is not against Australian law to use such a device, only to import or sell one.
New Zealand’s Cabinet paper again takes a more lenient approach. “Copyright owners should not … 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,” it says.
A member of Hall’s audience at a Wellington presentation organised by the Computer Society and the Technology Law Society this week [Monday September 15] questioned whether an ordinary CD burner could be regarded as a “circumvention device”, since its software often detects rights management information stored with the source material and puts up a warning, but then allows copying to go ahead.
The distinction between rights management and a TPM is not completely clear, Hall says.
The purpose of the Australian three-year review period was to check how well amendments that came into effect in 2001 were functioning. Hall suggests, however, that three years has not been long enough, as there have only been two full test cases of aspects of the legislation – one on TMPs and one on compelling an ISP to release details of allegedly infringing users. In particular, there have been no tests of ISP liability provisions, Hall says.