Australian law professor Sam Ricketson is impressed with the rapid progress countries have made in negotiating new copyright treaties to deal with the digital age, but warns that technological advances may make the most forward-looking copyright legislation and treaties irrelevant.
Meanwhile, profound issues of public policy arise as a result of copyright owners taking steps to protect their intellectual property against pirates, he says, and the possibility of “digital lockup” could lead to the irrelevance of traditional rights and defences. Examples might include Microsoft’s XP Product Activation technology and the US’s mooted CDBTA bill.
Ricketson, who delivered the keynote at a LexisNexis digital copyright conference in Auckland last week via video link, spoke on developments around the 1996 WIPO Treaties on copyright and performance rights and the WTO’s TRIPS. The Melbourne University professor noted in his paper that “for every ‘Napster’ that might be caught, even under traditional copyright doctrines, there will be successors, such as KaZaA, that might slip through”.
However, he says the tools provided under the new treaties — New Zealand and Australia were parties to the WIPO Copyright Treaty (WCT) negotiations but have not yet signed it — appear to be “impressive”: new exclusive rights of distribution and communication, and provisions for enforcement and protection through anti-circumvention and electronic rights measures.
Australia recently amended its copyright legislation to give effect to the principal provisions of the WCT, and says it clearly must be that government’s intention to accede to it.
Mark Steel, from the Ministry of Economic Development’s regulatory and competition policy branch, says part of the ministry’s current review of this country’s copyright legislation involves considering whether New Zealand should accede to the treaties.
Analysis of submissions has been reported back to the appropriate ministers. Any changes, which will make it to the statute books next year at the earliest, must balance the needs of copyright owners and users, Steel says. A total of 74 submissions were received, some extensive, though Steels says the ministry does not intend sweeping changes. While there was a clear division between intellectual property users and owners, most wanted some clarification of the copyright implications for ISPs.
The chair of the event, queens counsel John Katz, noted that New Zealand’s 1994 copyright legislation can trace its origins to 1973, but Steel suggests the act is not so out of date and did respond to the TRIPS agreement and to IT developments of the early 1990s.
Napster and its ilk were also discussed at the gathering, whose attendees mostly comprised the legal fraternity and policy makers, as were issues arising from making content available over the internet, fighting digital copyright infringements , protecting electronic databases and digital rights management.