Copyright law changes aim to tame technology tiger

Michelle Chignall | Monday 5 November 2001

Changes to New Zealand's copyright law are in the pipeline.

The Ministry of Economic Development issued a discussion paper in July called Digital Technology and the Copyright Act 1994, inviting responses to 20 specific questions and a slew of other matters.

The situation has changed dramatically since the present Copyright Act was passed.

The discussion paper identifies six specific issues arising from digital technology:

• the right to copy copyright works;
• the right to communicate copyright works to the public, including transmitting works over the internet and re-transmitting free-to-air broadcasts using digital technology [webcasting];
• the legal protection of technological protection measures and rights management information;
• whether, and in what circumstances, internet service providers (ISPs) should be liable for copyright infringement relating to the activities of their subscribers;
• the legal protection of electronic databases; and
  
• whether any new exceptions or permitted uses are required to protect the interests of users of copyright works and the wider public interest in the digital age.
  Put bluntly, the ministry is asking whether we should do one of three things:
  
• rely on the existing law - ie, see how much the courts can cram into the meaning of existing legislation;
• adopt reforms specified in, and urged on us by, international treaties to which we are not yet a party; or
• follow our own path.

The paper seems to prefer the third option so this is likely to be the basis of the proposed reforms.

It also raises issues that go far beyond the current copyright regime.

For example, the paper discusses the so-called sui generis - ie, unique - database right, available in the European Union and in Britain, which offers additional and wider protection than is currently available under copyright.

This does not protect each fact in a database, nor need it be limited to an electronic database. It can, in fact, apply to any systematic and ordered collection.

On one level the proposed reforms address six internet based issues. On another level there is an oppurtunity to change the balance of power in this area to address gaps and unintended anomalies which have been seen as arbitrary and unfair.

But it goes beyond a test of originality and looks at protecting a database and the investment in maintaining it.

Anyone concerned with protecting their investment in a database should lobby for this type of right.

Submissions close on October 12.

Anyone who accesses or downloads copyright material from the internet is a user and affected by the proposed reforms.

On one level the proposed reforms address six internet-based issues.

On another level there is an opportunity to change the balance of power in this area and to address gaps and unintended anomalies which have been seen as arbitrary and unfair.

Does part of the answer lie in educating the public?

Why is it almost a cliche that plagiarism is theft but many people holding this view have no problem copying their favourite CDs off the internet or by means of digital technology?

Others maintain that if a law is socially unacceptable it will not be obeyed.

But views on what is socially acceptable can be changed over time.

Consider the attitudes to drinking and driving over the past three decades or to cigarette smoking during the past 60 years.

What about the fate of the once-prized Bayer trademark, Heroin, during the past century?

So do we value our creative people and the industries based on their inventiveness?

Seemingly. But how far are we prepared to go in protecting our creative people and the industries based on their inventiveness?

It is not just a national argument.

Copyright works on a reciprocal basis internationally. And because the internet transcends national borders, what happens here can be an infringement in several places simultaneously.

We are on the brink of an abyss or an opportunity.

(c) The Independent Business Weekly, 2001.