Over-zealous copyright protection should not be allowed to inhibit the e-economy, says the Ministry of Economic Development.
Release of an MED position paper, on Wednesday, on technology and copyright law marks the second major step in the government’s progress towards accommodating the needs of copyright to today’s technology and information channels. It follows a round of submissions on a discussion paper released earlier this year.
There is a more general set of legal and business policy considerations around the handling of information and how it changes established business models, and it is inappropriate to see copyright law as an all-purpose solution to these problems, the MED says.
“It is not the role of copyright law to protect existing business models or help develop new ones.
“An underlying consideration in assessing options is ... the impact of any proposed change to copyright law on New Zealand's capacity to harness the potential economic benefits of the internet and e-commerce generally, not solely the risks and benefits to specific constituencies.”
This passage is the first of many tangential references to the government’s identification of ICT as a key potential saviour of the economy. There is a clear message at many points in the report that assiduous protectors of personal intellectual property should consider moderating their views so as not to compromise efforts in that direction.
“The key principle that guides the development of copyright policy is the enhancement of the public interest -- copyright laws must benefit New Zealand as a whole ... The ministry prefers a more principled approach to law reform, based on broad principles, not narrowly defined and negotiated rights and exceptions.”
“Technological neutrality”, looking for similarities rather than differences between new and older technologies, is an approach that has carried copyright law far in accommodating, for example, broadcasting and cable television services, the MED says.
“There are, however, risks in pursuing neutrality for its own sake where there are differences that justify separate or distinct approaches.”
The MED’s report suggests communication has replaced actual copying as the primary concern of copyright legislation.
“Widespread use of the internet as a means to distribute and communicate works has necessarily extended the constituency of copyright law, beyond the conventional industry players, to include the general public to a greater degree than before, and raises issues such as the application of copyright to web browsing,” the report says.
Despite a good deal of debate about how the concept of “copying” something in “material form” might be modified for digital media, “the ministry's preferred policy response is to leave the current definition of copying in section 2 of the act unchanged.”
This definition, however, is thought broad enough to include “transient” copies such as those made unavoidably in computer memory and copies preserved in a cache.
The MED favours specific exemptions for certain kinds of transient copying like the above, which are a necessary and automatic part of the process of doing a legal act such as reading the material on a screen.
At the same time, the report says, it should be acknowledged that “not all transient copying is automatic or for purely technical purposes and should not be exempted from the copyright owners’ exclusive reproduction right”.
After considering communication to the public, and how a webcast or interactive web session resembles or differs from a cable TV programme, the ministry, following many of the submissions to the earlier report, advocates establishing “a technology-neutral right of communication to the public that would cover both transmission and the making available of works. Creation of a specific webcasting right or changes to the cable programme service definition would only provide a temporary solution as new technologies develop and others become obsolete.”
A section is devoted to ISP liability for transient copying of copyright works in transmitting the material through the internet, and for the longer-term copying involved in caching material for efficiency.
Both should be permitted without ISP liability, the report suggests, as “caching of frequently accessed websites allows for more cost-effective and efficient access to internet material” – and so works towards the public interest and the benefit of the ICT-mediated economy.
The MED supports electronic rights management (ERM) systems and favours a law to prohibit tampering with such systems so as to permit copying of material that the owner wishes to protect. But this protection of ERM devices and information, it says, should not apply to the broader functions often bundled in with ERM that tell the owner where, by whom and how many times the material is being consumed, and which parts of it are being consumed. These functions, it suggests, may in some circumstances breach the Privacy Act.
Submissions on the position paper are requested by February 21.