Wednesday 30 January 2019

New Zealand Copyright Act under review

The 1709 Blog is delighted to host the following contribution by 1709 Blog friend Ken Moon (AJ Park Law, Auckland) concerning the ongoing review of the New Zealand Copyright Act. 

Here’s what Ken writes:


The New Zealand Copyright Act 1994 is now under review. The review got underway in earnest with the November release of a 126-page Issues Paper by the Ministry of Business, Innovation & Employment (MBIE). This review is of the whole of the Act, although internet issues are pre-eminent.

The MBIE Issues Paper identifies potential issues upon which it seeks submissions from interested parties. MBIE appreciates that the Act may already adequately address some issues it has identified and is happy to receive submissions arguing for no change.

Adherence to international copyright treaties
Over the years, New Zealand has not been good at amending its copyright legislation to ratify international copyright treaties or conventions. However, as is noted in the Issues Paper, under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), New Zealand is obliged to make amendments to incorporate many of the provisions in the IP Chapter of the TPP and this process is already underway. Some of these require implementation of terms of the 1996 WIPO Performers and Phonograms Treaty (WPPT) which addressed internet issues, particularly for performers who had previously been side-lined. However, there are other provisions of the WPPT which will need to be addressed in the comprehensive review, such as performer remuneration for broadcasts and communications of their recordings.

Some of the Identified Issues
Fair use and exceptions to copyright infringement
Currently, the Act ensures certain listed non-commercial activities are not infringements of copyright, including those categorised as ‘fair dealing’. The Act also makes specific exceptions for the education industry and libraries. This is the traditional British approach.

But should a broader US fair use defence be adopted in place of fair dealing? Naturally social media advocates favour this. However, fair use is somewhat subjective and reduces the certainty of legal opinions on what is infringement and what is not.

As to the adequacy of the existing statutory exceptions to infringement, it is time to look at whether the reproduction of parts of a work for the purposes of satire should be excepted. Also, should exceptions for public playing of works and format-shifting be more extensive? On the other hand, is the current exception for reproducing artistic works on public display, such as sculptures, unnecessarily broad. An example being applying an image of a sculpture to t-shirts without obtaining a licence from the sculptor and paying royalties.

Internet-related issues
  • Should a website link to infringing content stored on another website constitute copyright infringement as under EU law? 
  • MBIE questions whether content streaming should be treated the same as broadcasting under the existing right to communicate. But many will argue that the particular transmission technology is irrelevant from a creator’s point of view. 
  • New Zealand is the only country that has ‘communication works’ specified as a work in which copyright subsists. This makes broadcasts and internet streams to the public copyright works in themselves, in addition to any copyright in the content. Thus, retransmission may constitute infringement. This was the most far-sighted of all the 2008 ‘internet amendments’ made to the Act. However, MBIE believes this is problematic because it is hard to know who might constitute the ‘public’. Strangely, MBIE does not see this as a problem with the communication right. 
  • User-generated content on social media platforms, even if it is supposedly merely ‘inspired’ by existing content, can amount to copyright infringement if it reproduces a substantial part of that content. Should this be the case or should there be exceptions? 
  • Currently, section 43A of the Act provides an exemption from infringement for transient reproduction of a work if it is an integral part of the technological process for communicating the work. This has application to streaming technology, but has been interpreted by a New Zealand court in a more restrictive manner than has been the case in the UK. Clarification seems called for even if all that is done is inserting a definition of ‘transient’. 
Software-related issues
  • The Act does not allow for a copyright owner to renounce their copyright. Some software developers (and users) have wished for this instead of retaining copyright and adopting licensing schemes of the open source or creative commons types. Should renunciation of copyright be provided for? 
  • The Act currently already provides specific exceptions to infringement for computer programs such as: 
    • decompilation of a program in order to write an interoperable program 
    • copying or adapting a program to allow for continued use and for correcting errors 
    • studying the functioning of the program to determine the ideas that underlie it while loading, displaying, running, transmitting, or storing the program. 
These were radical enough when introduced in the 2008 amendments, but MBIE is asking if there should be further exceptions to program infringement.

Enforcement of copyright
  • MBIE asks whether a voluntary register be made available, as in Canada, to simplify identification of copyright owners. But it is questionable whether there have been injustices in past New Zealand copyright cases to justify the costs of running such a register of ownership. 
  • Currently legal action for copyright infringement can only be taken by copyright owners or their exclusive licensees. Should non-exclusive licensees be able to sue?
  • Should the Act provide a remedy for groundless threats of copyright infringement as is the case for patents? 
Relationship between copyright and registered design protection
In New Zealand the Copyright Act protects three-dimensional copying of functional products via the copyright which subsists in the design drawings of the product – as used to be the case under UK law. MBIE raises the old question of whether the potential overlap between copyright protection for product design and protection by the Designs Act should be permitted. The fear of New Zealand protection providing greater protection for foreign designers compared to what New Zealand designers may receive in some other countries emerges. Of course, New Zealand designers are accorded unregistered design rights in European Union countries, even if not in the USA.

Due date for submissions to be made
Submissions on the Issues Paper can be made to MBIE until 5.00pm on 5 April 2019. An online portal can be used for this. Submissions will be published, although confidentiality can be claimed for some content.”

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