The Copyright (New Technologies) Amendment Act 2008 (the Amendment Act) received royal assent on 11 April 2008 (most of the Amendment Act comes into force on a date still to be set by Order in Council). The Amendment Act is intended to update the Copyright Act 1994 (the Act) to reflect international copyright developments and to make the Act more technology neutral.
The key features are:
- The technology-neutral “communication work” has replaced the “broadcast” and “cable programme” works. A corresponding right to communicate a work to the public has been introduced
- A limited exception to the owner’s exclusive right to copy for automatic transient or incidental copying by computers/communication networks has been introduced
- Exceptions from infringement for format-shifting of sound recordings for private and domestic use, and for decompilation and error correction of software (although copyright owners of sound recordings can contract out of the format-shifting exception), now exist
- The extension of the restriction on the parallel importation of movies other than for private and domestic use during the 9 months following initial release in New Zealand, to 31 October 2013
- Limitations to internet service provider (ISP) liability have been introduced. ISPs are also required to implement policies to target “repeat infringer” accounts
- Prohibitions against devices that circumvent technological protection measures (TPMs) have been expanded.
- Internet service providers
- Where an internet user infringes copyright, the Amendment Act limits ISP liability in a number of circumstances:
- When storing infringing material provided by a user, ISP liability is limited where the ISP does not know or have reason to believe that the material is infringing, and acts as soon as possible to delete it or prevent access to it after becoming aware of the infringing material. That said, copyright owners may still obtain injunctive relief against ISPs, and if an owner issues a “notice of infringement” to an ISP, courts will take such notices into account in assessing the ISPs knowledge about infringing material. The notice of infringement must be in a prescribed form and the requirements of this will be set by regulation (the submission due date for these regulations is 4 June 2008).
- An ISP does not infringe copyright in a work by “caching” material so long as the ISP does not modify the material and complies with certain other requirements. An ISP must, though, delete the cached material as soon as possible after it learns that the material has been deleted from the original source or access to it has been prevented or a court order has been issued for its deletion.
- ISPs are also required to implement policies to terminate the accounts of users who are “repeat infringers”, being a person who repeatedly infringes copyright using the services of the ISP.
Technological protection measures
The current prohibition against making, importing, hiring, and selling devices, services or information designed to circumvent "copy protection" has been expanded to cover devices, services and information that circumvent TPMs that protect all the rights enjoyed by a copyright owner (not just copying).
A new exception to infringement has also been introduced. A person who is prevented by a TPM from doing an act to a work that is permitted under Part 3 of the Act (e.g. fair dealing) may apply to the copyright owner for assistance in doing the permitted act or, if the owner refuses or fails to respond within a reasonable time, may engage a “qualified person” to use a “TPM circumvention device” to do the permitted act.
In support of the above exception, the Amendment Act permits the sale, hire etc of a TPM circumvention device to enable a qualified person to use the device to allow someone to exercise a permitted act. Suppliers of TPM circumvention devices must not supply such devices to qualified persons until the qualified person supplies a declaration in a form to be prescribed by regulation (the due date for submissions on these regulations is 4 June 2008).
The Amendment Act also introduces new offences for:
- Commercial dealing in copyright works where copyright management information has been removed or altered (carrying a fine not exceeding $150,000 or imprisonment for up to 5 years, or both)
- Dealing in the course of a business in devices, services, or information designed to circumvent TPMs (carrying a fine not exceeding $150,000 or imprisonment for up to 5 years, or both).
The Government introduced the Copyright (Artists’ Resale Right) Amendment Bill on 13 May 2008. This Bill establishes a mandatory resale right for artists when their artistic works are resold in New Zealand. The resale right will not apply to the first sale or transfer of art work or the sale of artistic works between private individuals and will be managed through a compulsory collection system.
This article was written by Cherie Lawrence and Andrew Matangi.
Cherie Lawrence is a senior associate at Buddle Findlay and a member of our corporate team specialising in information technology, intellectual property and commercial law. Cherie can be contacted by phone: +64-9-363 1029 or e‑mail: cherie.lawrence@buddlefindlay.com.
Andrew Matangi is a consultant at Buddle Findlay and specialises in intellectual property and information and communication technology (ICT) and has done so for 15 years. Andrew can be contacted by phone +64-4-498 7315 or e-mail: andrew.matangi@buddlefindlay.com
Copyright (Artists’ Resale Right) Amendment Bill