Copyright - Digital Technologies

The Greens alone opposed this bill at its first reading. We voted against it because, contrary to the ministry's 2002 advice, it served to protect access control technology, which is technology that has been used to price discriminate and control geographical distribution of works, to the detriment of users. We opposed the bill because although it tried to provide for fair use, that provision was temporary. In addition, it failed to provide for visual as well as audio media. We opposed it because of its potential to hinder innovation in that blurry world between the personal and the commercial, and because of its potential to hinder the development of compatibility and interoperability in products and hinder legitimate security research. We opposed it because it protected the interests of the rich and powerful against those of ordinary people. It tied the hands of people who might seek to circumvent any number of encrypted intrusions incorporated into digital works, even when those might be contrary to New Zealand law. Has the Commerce Committee made it any better? Yes and no.

Let us begin with the issue of format shifting — the copying of works to different formats for more convenient or preferable use. A typical example might be ripping a CD to a computer or an MP3 player. The Select Committee removed the sunset clause from the fair use provisions, and we welcome that. It made no sense to recognise for the first time a right to, for example, copy a track from a CD onto a device but then have only that right last for a couple of years.

However, the Select Committee countered that move with some retrogressive steps. The bill now requires that the owner of a recording keep hold of the original. One of the reasons why I started ripping CDs onto my computer was the realisation that the promise of indestructibility was just another corporate con when it came to CDs, and that my CDs were not lasting even as long as my vinyl. Under those circumstances, why would I hang onto a broken disc? In addition, the committee has retained provisions that unreasonably restrict time shifting and has clarified that copyright owners can opt out of fair use provisions. Presumably, that might mean just putting a sticker on the cover of a CD. We would find that unacceptable.

Lastly, the provision still excludes video, because in the words of the committee: "… format-shifting of music for private and domestic use is widespread, while format-shifting of other types of copyrighted works is not." Maybe it is not so widespread as to have reached the ears of the members of the committee, but even John Key is now on YouTube. Not that I expect any but the most loyal or masochistic to be watching him on a portable, but the point is that the assumptions that the committee used in making that determination simply do not hold in the modern world. We believe that the public has been let down by format shifting in this area and, like other ill-conceived prohibitions, they will simply ignore it.

The clauses around digital rights management, or technology protection measures, remain problematic. It is good to see a move to more neutral language. It is good to see the definition of technological protection measures being amended to specifically exclude controls on access to a work for non-infringing purposes such as regional zone access protection. It is also good to see an amendment to allow a user to seek assistance from a qualified person to exercise a permitted act using a technological protection measure circumvention device. However, we are not clear about how a member of the public can legitimately get hold of a technological protection measure circumvention device that they are allowed to use in the exercising of permitted acts, if the sale and distribution of the device is itself an offence.

The last thing I would like to discuss relates to internet service provider obligations. The Green Party welcomes the clarification the Committee made in relation to the new section 92B. However, we are extremely concerned about clause 92C and the retention of the notice and takedown regime previously referred to by the Minister in the second reading in relation to claims of breach of copyright. Under the bill, if an Internet service provider is informed about a claimed breach of copyright in relation to material it stores, then it is liable if it does not "as soon possible after becoming aware … of facts or circumstances that make it apparent that the material is likely to infringe copyright in the work, delete the material or prevent access to it".

I think it is important that members note the words "likely to infringe", because an internet service provider, in practice, will interpret this as "might possibly infringe a copyright work", because it simply cannot afford to take the risk. This sort of measure can easily be abused — and has been abused in other jurisdictions. The recent case of Solid Energy attempting to injunct a satirical annual report put together by opponents of its Happy Valley coal mine is a case in point. Under this provision, the internet service provider would have had to remove the material immediately Solid Energy complained, even though the court in that case ended up finding substantially in favour of the defendants.

The Green Party would much prefer a notice provision whereby notification of a claim of breach of copyright would require the internet service provider to notify the person responsible for the material alleged to be in breach. In most cases, the person will either admit guilt or simply fail to respond. Both of those examples would lead to the immediate removal of the material. It would be only a small percentage that would contest the claim, and the matter could then be adjudicated in an impartial manner. We believe that this approach would provide fair protection to copyright holders while also protecting legitimate use, or at least allow claims to be contested. The current notice and take-down provision, even with the right to sue for unjustified proceedings, does not do that, especially in relation to cases where there is a reasonable argument to be made in either direction.

As a secondary matter, I also understand that the Select Committee has recommended that a notice by a copyright holder to an internet service provider be in a prescribed form, with fairly strong penalties on copyright holders if they make errors in that notification. This seems to us to be quite bizarre. Surely, to simply ensure that the intent of the communication is clear and contains the necessary information should be enough.

The Greens had hoped to be able to support this legislation following the select committee process, but we find ourselves unable to do so at this stage because of what we consider to be outstanding flaws. I will be talking to the Government and the Minister in charge of the bill, and I will also be looking to move a number of amendments during the Committee stage, in the hope that we might still be able to see this bill come through the process in a form that the Green Party would support. We agree that it is very important to get this legislation in place, and that it is important to get it right. There are a number of problems with the existing legal situation that need to be remedied.