Copyright Amendment Bill

Let me begin by acknowledging that this bill is an attempt to address serious deficiencies in current legislation.

There is no doubt that there is a real need to amend copyright legislation to make it compatible with digital technology and to protect genuine intellectual or creative property.

I think it is fair to say there are some things in this bill that are deserving of support and that improve on the status quo.

Some of those improvements are a result of amendments made both at the Commerce Committee and during the Committee of the whole House.

However, the Green Party remains concerned enough about some of the provisions that we will continue to vote against this bill.

I am aware that the Minister stated during the Committee stage that some of the issues we have raised — both during the debate in this House and during private discussions with her — will be looked at by way of a review by the Ministry of Economic Development.

She specifically referred to our concerns about the lack of protection for fair use in relation to copyright infringement, particularly when used for satire and the like.

The Minister has indicated that her approach is likely to be a specific protection for fair comment and parody, and I understand that this approach is the same as has been taken in some other jurisdictions.

The Green Party welcomes that announcement.

However, it is not sufficient to cause us to change our position on this bill.

The gestation and passage of this bill has been lengthy, and we do not see why these issues could not have been addressed before today.

In any case, we feel unable to put away our concerns on the basis of a future process with an unknown outcome.

As I have said before, our concern is particularly around the Internet service provider liability provisions and the opportunity for corporate bullying that they provide.

Under the bill, if an Internet service provider is informed that material it stores may breach copyright held by someone else, it is liable to a penalty if it does not, as soon as possible after becoming aware of the complaint, delete the material or prevent access to it.

The triggering threshold is that the material is "likely to infringe" such copyright.

As I have said previously, an Internet service provider will, in practice, interpret this very broadly.

Internet service providers simply will not want to take any risk.

Once notified of a potential breach of copyright they will almost certainly take down the material — if they think there is even a possibility that it breaches copyright — and leave it to the courts to sort out, if, in fact, the matter ever even gets to court.

We have seen these kinds of provisions being misused in other jurisdictions.

They can be used to clamp down on satirical websites and to inhibit genuine creative innovation.

In fact, the world would never even have heard of breakbeat without the assertion of fair-use rights in creating new works by way of sampling and the like.

In the United States there have been massive corporate attempts to destroy musical forms based on sampling, such as hip hop.

The Greens would like to see, in opposition to the notice and take-down provisions in this bill, a notice and notice regime.

As I have said, it would work like this: if someone makes a claim to an Internet service provider that some material that it hosts breaches copyright, the Internet service provider will notify the alleged infringer.

In most cases the person would either admit guilt or just fail to respond, and in those cases the Internet service provider would simply remove or prevent access to that material.

However, a small proportion of alleged infringers would contest the claim for genuine — if debatable — reasons, and the matter could then be adjudicated in court.

We believe that this approach would provide fair protection for copyright holders while also protecting legitimate use.

It would at least allow claims to be contested in an impartial forum.

We believe that the current notice and take-down provisions do not provide any protection for fair use.

Although the bill does provide a right to sue for unjustified proceedings, where a matter is genuinely contested that right will be of no value, because it will not be an unjustified proceeding, it will be simply a contested proceeding.

However, I do thank the Minister for amending during the Committee stage provisions added by the select committee on how a copyright holder gives a notice to an Internet service provider of an alleged breach, because those requirements were unreasonably restrictive.

I also welcome the amendments around the use of copyright materials by educational establishments and education resource providers that are not-for-profit organisations.

These amendments make such materials available for legitimate educational purposes and I think that those are important amendments that were much needed.

In relation to amendments made at the Committee stage, let me lastly state the Green Party support for the decision taken by the Committee to vote against Gordon Copeland's amendments, which would have provided satellite television providers with a right to retransmit works broadcast on a free-to-air format.

That seems to us to be a simply commercial matter and one best left to the commercial operators to sort out for themselves.

We do have issues remaining around the technological protection measures and around some other areas.

I have canvassed all of those things in detail in previous stages of the debate so I will not repeat them here, but I would like to make one final point in this debate, which is around the Minister's announcement that another copyright amendment bill is proposed.

I understand that this bill will pick up any recommendations from the Ministry of Economic Development review that I discussed earlier in relation to fair use, particularly around the liability of Internet service providers.

I guess that a specific exemption around fair use would have implications beyond just Internet service provider liability and would provide protection for a range of other fair-use activities.

I think that that would be a good thing.

The other thing that bill is expected to pick up is work around the commissioning rule in relation to photographers, where photographers do not hold the copyright in published work by default.

We understand this to be an anomaly internationally and an anomaly in relation to other forms of creative work.

It is something that we believe needs to be addressed.

We have discussed it with the Minister — we have had fruitful discussions — and although, clearly, that matter was not within the scope of this bill, it is something that needs to be picked up in future work.

Thank you, Madam Assistant Speaker.