Microsoft’s submission to a discussion paper on possible changes to the Copyright Act “reflect some of the realities” of dealing with determined software pirates, says an Auckland intellectual property lawyer.
The submission advocates a number of steps to more strongly protect intellectual property than through the existing Digital Technology and Copyright Act 1994. These include reducing the onus of proof for copyright owners, a “notice and take down” regime whereby ISPs take responsibility to remove or block infringing material, recognition of and protection for “temporary” copies of content, the outlawing of mechanical or software devices which circumvent copyright, and tougher enforcement provisions for software pirates.
Barrister Andrew Brown says there are already some presumptions of copyright ownership in the current act, but says the legal burden of proof is a “huge issue” for copyright owners, who bear a disproportionate cost of proving property ownership.
Giving greater status to temporary copies of copyright material is a tougher question, says Brown, as the public use of downloaded material on some websites might suggest an implied licence. He suggests some legal distinction might have to be made between this and “publishing for profit”. Microsoft New Zealand head Geoff Lawrie says most content is likely to be delivered in temporary form, and such copies should have the same protection as a permanent copy.
As for ISPs’ role in limiting copyright breaches, the discussion paper, which came out of the Ministry of Economic Development in July, claims a middle ground approach, whereby ISPs are liable for some copyright breaches of their subscribers, is working in the US and Australia.
Brown says there are already some provisions in the existing act to stop the use of devices for illegal copying of material. He says one approach could be to allow for some copies in charging for recording media; he notes, for example, that some countries — not New Zealand — impose a levy on blank audio tapes to compensate the losses of the music industry from copying.
As for greater penalties, Brown says criminal provisions already exist for the prosecution of copyright enfringement. The problem is enforcement, he says, and law firm AJ Park’s 1998 report for the Ministry of Economic Development on intellectual property theft suggested the possibility of Customs enforcing copyright. Brown says this works well in Hong Kong, and could work here, given the police’s “pathetic” enforcement due to lack of experience and resources.
IBM says it is also making a submission on the discussion paper and ITANZ is also understood to be voicing its opinion on potential changes to the act.