Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698839257371.pdf (New Zealand)
Copyright (New Technologies and Performers’ Rights) Amendment Bill Government Bill As reported from the Commerce Committee Commentary Recommendation The Commerce Committee has examined the Copyright (New Tech­ nologies and Performers’ Rights) Amendment Bill and recommends that it be passed with the amendments shown.

Introduction This bill amends the Copyright Act 1994 to address the emergence of technologies such as the Internet.
It seeks to maintain the existing balance between the interests of the owners and those of the users of copyright works.

It also seeks to create a more technology­neutral framework for the Copyright Act.

This bill takes account of international developments in copyright law, and incorporates many aspects of the two treaties negotiated by the members of the World Intellectual Property Organisation (WIPO)—the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
102—2 2 Copyright (New Technologies and Performers’ Rights) Amendment Bill Commentary The Ministry of Economic Development advised us that this legis­ lation will be reviewed in ﬁve years’ time to ensure that copyright legislation in New Zealand keeps pace with technological advances.

This commentary addresses the key issues considered, and explains the substantive amendments recommended.

Technical and minor amendments are not discussed.


Title We recommend that the title be changed from “Copyright (New Technologies and Performers’ Rights) Amendment Act” to “Copy­ right (New Technologies) Amendment Act”.

Although the bill does amend some provisions concerning performers’ rights, all these amendments relate only to making these provisions technologically neutral.
Copying for educational purposes We recommend amending new section 44(4A) (clause 24) to make it clear that the section, which describes one of the conditions under which copying for educational purposes would be allowed, applies to copies communicated electronically.

Storing for educational purposes We recommend several amendments to new section 44A (clause 25), which sets out the conditions under which an educational establish­ ment would be allowed to store pages from websites.
We recommend amending new section 44A(1)(b)(ii) to make the re­ quirement to identify the author dependent on the author’s identity being known.

As authors of works available on the Internet are often unidentiﬁable, we consider that it would be unrealistic to require edu­ cational establishments to identify authors in every case.

We recommend that new section 44A(1)(b)(iv) be deleted.
This sec­ tion provides that an educational establishment storing pages from websites must identify the course of instruction for which the mater­ ial is stored.

We consider this requirement impractical, as the same website page could be used in many courses.

This requirement could also reduce the ﬂexibility of assembling teaching components and thus stiﬂe innovation in the use of the Internet for teaching.
Commentary Copyright (New Technologies and Performers’ Rights) Amendment Bill 3 We also recommend that new section 44A(1)(d) be deleted.

This sec­ tion requires that the material concerned cannot be made available to authenticated users until it has been removed from the original web­ site or other electronic retrieval system.
This proposal is impractical because a website page cannot be physically copied after it has been removed from the site, and this section would require an educational establishment to continuously monitor the website pages concerned.
Copying by librarians and archivists for replacement In the bill as introduced, a librarian of a prescribed library or an archivist may make a digital copy of any item in the library or archive’s collection to replace the original item, provided that the conditions stated in paragraphs (a) to (d) of new section 55(3) are satisﬁed (inserted by clause 34(2)).

The condition in new section 55(3)(c) is that the original item is not accessible by members of the public after replacement by the digi­ tal copy.
However, some researchers may want to compare the ori­ ginal item with the digital copy to examine features such as the paper quality, watermarks, and foliation symbols, which cannot be distin­ guished in a digital copy.

We therefore recommend that new section 55(3)(c) be amended to add an exception for access for research pur­ poses where the nature of the research requires or would beneﬁt from access to the original item.
We recommend that new section 55(4) be inserted into clause 34(2) to make this clause consistent with section 55(1)(b) of the Act.

This amendment would allow a digital copy to be made to replace an item in a prescribed library or archive under limited circumstances.
Conditions for libraries and archives making and supplying digital copies New section 56A (clause 36) sets out some of the conditions under which a prescribed library or archive would be permitted to com­ municate digital copies of copyrighted works to authenticated users.

Some submitters were concerned that this section would harm the interests of copyright owners, who they believe would consequently have fewer market opportunities to supply digital copies of their works.
However, we are not satisﬁed with evidence offered in support of this claim.

Noting that libraries and archives are already 4 Copyright (New Technologies and Performers’ Rights) Amendment Bill Commentary allowed to supply digital works to their users under existing laws, we consider that the new section 56A should be retained, subject to the following amendments.
We consider that all the conditions in new section 56A should apply whether access to the digital copies in question is provided by means of terminals on­site or off­site, as we consider that it is impossible, in practical terms, to differentiate between on­site and off­site access.

We also recommend deﬁning “authenticated user” in this section in a more restrictive way.

We recommend that new sections 56B(a) and 56C(a) (clause 36) be deleted.
These provide that a person or a library must make a written request for a digital copy of a work, and must state the purpose for which the material will be used.

We consider that this condition is unnecessary in the light of the current practice of copying such re­ quests, thus identifying the requester and the work.

Also, sections 51 to 54 and 56 of the principal Act allow libraries and archives to supply a copy of work only for the purposes of research or private study.
We recommend that new sections 56B(b) and 56C(b), which require a written declaration that certain provisions of the principal Act have been complied with, also be deleted to reduce compliance costs for libraries and archives.

We recommend deleting new section 56B(c) as we consider that noth­ ing under the principal Act would permit a library or archive to sup­ ply copies of works requested to anyone other than the person who made the request, making this provision redundant.
Observing, studying, or testing of computer program We recommend inserting new section 80BA (clause 43) to clarify that a lawful user of a computer program may observe, study, or test the functioning of the program under certain circumstances without infringing copyright.

Communications works The bill makes a number of amendments to the provisions regard­ ing transmitted works such as broadcast and cable television pro­ grammes.
Commentary Copyright (New Technologies and Performers’ Rights) Amendment Bill 5 Format­shifting for personal use New section 81A (clause 44) provides a limited exception for copy­ ing sound recordings for personal use.

In other words, “format­shift­ ing” of music would be allowed if certain conditions were met.

Some submitters asserted that a person who purchases a copy of a sound recording on CD, for example, should be allowed to copy it to another format without restrictions.
However, we are of the view that such a person does not acquire copyright in the sound recordings concerned; the copyright owner retains the exclusive right to control copying of his or her works under section 16 of the principal Act.

We therefore recommend retaining the restrictions on copying sound recording for personal use, which are set out in sections 81A(1) in clause 44, subject to some recommended amendments.
We recommend amending new section 81A(1)(e) to clarify that the copy must be solely for the personal use of the person who made it or of a member of his or her household if the format­shifting exception is to apply.

We recommend amending new section 81A(1)(g) so that a person who has purchased a copy of a copyrighted sound recording must retain possession of both the original copy and any copy made under this clause.
A member of the public would therefore not be able to retain the copy if they sold the original CD.

We recommend that new section 81A(2) be amended to make it clearer that copyright owners always have the option of contracting out of all of the permitted acts, including those in new section 81A.

We recommend that new section 81A(3) be deleted.

This subsection provides that new section 81A expires two years after enactment un­ less the Governor­General extends the expiry date by Order in Coun­ cil.
In our opinion, this subsection would create uncertainty as to whether purchasers of sound recordings recorded on older technol­ ogy would be allowed to continue format­shifting those recordings for private and domestic use in the future.

Some submitters were concerned that new section 81A is limited to sound recordings only.
We do not believe that an extension of the provision to other works such as ﬁlms would be justiﬁed under the Berne Convention for the Protection of Literary and Artistic Works, of which New Zealand is a member.

Furthermore, we consider that format­shifting of music for private and domestic use is widespread, 6 Copyright (New Technologies and Performers’ Rights) Amendment Bill Commentary while format­shifting of other types of copyrighted works is not.
We therefore do not recommend extending the exception in new section 81A.

Time shifting New section 84, inserted by clause 45, provides an exception for recording for the purpose of viewing or listening at a more convenient time.

In other words, this section allows time shifting of communi­ cation work under certain conditions.
We recommend amending new section 84(1)(a) to make it clear that the recording must be solely for the personal use of the person who made it or of a member of his or her household if the time­shifting exception is to apply.

We also recommend rewording section 84(1)(c) to clarify that a time­ shifted recording must not be made from an on­demand service.
Free public playing or showing of communication work that is simultaneous with reception We recommend amending new section 87A(1)(b) (clause 48) and new section 188A(1)(b) (clause 84) to clarify that new sections 87A and 188A apply to free­to­air broadcasts, but not to subscribed broad­ casts such as cable programmes.
New sections 87A and 188A pro­ vide for an exception for the situation where a communication work for which no subscription fee is charged is shown or played simul­ taneously with its reception.

Reception and retransmission of broadcast in cable programme service The majority of us are concerned about the effect of clause 49, which repeals section 88 of the principal Act, on the delivery of broadcasts to remote areas.
We therefore recommend that clause 49 be amended to retain section 88 of the principal Act.

As section 88 contains a number of technologically speciﬁc terms that will not be used elsewhere in the principal Act after its amend­ ment, we recommend the insertion of new subsection (4) to preserve the deﬁnitions of these terms for the purposes of section 88 only.
Commentary Copyright (New Technologies and Performers’ Rights) Amendment Bill 7 Internet service provider obligations We recommend amending the deﬁnition of “Internet service provider” in clause 3(2) to ensure that a person who hosts material on websites or other electronic retrieval systems that can be accessed by a user falls within the deﬁnition.
Requirement for a policy to terminate accounts of repeat copyright infringers We recommend that new section 92A (clause 53) be deleted as the standard terms and conditions of agreements between an Internet ser­ vice provider and its customers usually allow for the termination of accounts of people using the services for illegal activity.
More­ over, new section 92C already requires an Internet service provider to delete infringing material or prevent access to it as soon as pos­ sible after becoming aware of it.
Liability if user infringes copyright We consider that the wording of new section 92B (clause 53) is un­ satisfactory because it could expose Internet service providers to li­ ability for copyright infringement where a person had infringed the copyright concerned before using the services of the Internet service provider to send or distribute the infringing content.
We recommend that new section 92B be amended to clarify that this section would apply only if a person infringed copyright in a work by using Inter­ net services of the Internet service provider.

We also recommend the addition of a deﬁnition of “Internet services” in this section.

Liability for storing infringing material In clause 53, we recommend amending new section 92C(2)(a) and inserting new section 92C(2)(ba) to make it clearer when Internet service providers would be required to take material down.
We also recommend amending new section 92C(2)(b) to provide that an Internet service provider would become liable for copyright in­ fringement by storing infringing material if a user of the service com­ mitted an act of copyright infringement on behalf of, or at the direc­ tion of, the Internet service provider.
We were concerned that the bill as introduced was unclear whether students of educational insti­ tutions or employees of companies would be considered to be acting 8 Copyright (New Technologies and Performers’ Rights) Amendment Bill Commentary under the authority and control of an Internet service provider if those educational institutions or the companies provided them with email services.

We believe that our recommended amendment will remove this uncertainty.
We recommend clarifying new section 92C(4) and new section 92D(3) by providing that nothing in new section 92C or 92D limits the right of the copyright owner to seek injunctive relief in relation to either a user’s infringement or any infringement by the Internet service provider.

We recommend inserting new section 92CA (clause 53) to prescribe the requirements for the notice of infringement that is referred to in new section 92C(2)(ba)(i).
We also recommend inserting new sec­ tion 92CB to set out offences in relation to notices of infringement.

The maximum penalty for such offences would be a ﬁne of $50,000 for an individual, and a ﬁne of $100,000 for a body corporate.
Unjustiﬁed proceedings We recommend inserting clause 64A to amend section 130(1) so that a person can bring proceedings against a person who has brought un­ justiﬁed proceedings for contravention of new section 226A, which sets out prohibited conduct in relation to technological protection measures.
Use of recording without the consent of the performer We recommend amending new section 172 (clause 77) to provide that a person would infringe a performer’s rights if he or she showed or played in public, or communicated to the public, a recording that he or she knew or had reason to believe was made without the consent of the performer.
We consider that the original wording of section 172 could unintentionally erode the performer’s right to control un­ authorised use of his or her performances, and would therefore fail to maintain the existing balance between the performer’s interests and users’ interests.

Our recommended amendment would address this concern.
Commentary Copyright (New Technologies and Performers’ Rights) Amendment Bill 9 Technological protection measures We recommend retaining all the proposed provisions (new sections 226 to 226J) in clause 89, which relate to technological protection measures (TPM), subject to our proposed amendments.
We consider that these provisions are necessary to manage the risk of piracy of copyrighted works in a digital environment, and that they strike the correct balance between the interests of copyright owners and those of copyright users.

We recommend that the deﬁnition of technological protection meas­ ures in new section 226 be amended to speciﬁcally exclude con­ trols on access to a work for non­infringing purposes, such as geo­ graphic market segmentation.
We consider that the principal Act is not intended to protect access­control technologies that are used to price­discriminate or control the geographical distribution of works to the detriment of users in New Zealand.

The principal Act and this bill protect only technological measures that prevent copyright in­ fringements.
For example, regional zone access protections, which prevent users from playing DVDs purchased from other zones, are not linked to copyright infringement and therefore should not fall within the deﬁnition of a TPM under new section 226.

We recommend deleting references to “TPM spoiler”, and substitut­ ing the term “TPM circumvention device” for “TPM spoiling de­ vice”, so that the language in the bill is consistent with that used by the courts.
We recommend that new section 226E (clause 89) be amended to al­ low a user to seek assistance from a qualiﬁed person to exercise a permitted act using a TPM circumvention device without prior ap­ plication to the copyright owner.

We also recommend inserting new section 226E(4) to ensure that such persons cannot charge unreason­ ably high fees for such assistance.
We recommend the addition of a new regulation­making power in new section 226D(3)(d) that al­ lows the Governor­General to specify persons as qualiﬁed persons by Order in Council.

Some submitters are concerned that the act of circumventing a TPM is not itself prohibited by the bill.

However, we consider that there are many circumstances where users of copyright works may want to circumvent a TPM for legitimate purposes, such as fair dealing with a work for the purposes of research and private study.
Also, this bill provides an effective way of controlling the circumvention of TPMs 10 Copyright (New Technologies and Performers’ Rights) Amendment Bill Commentary by prohibiting dealings with circumvention devices and the provision of circumvention services.

Furthermore, where the act of circumven­ tion occurred in the course of business, the person committing the act would often be in breach of the principal Act, for example, by pos­ sessing or dealing with a copy that infringes copyright.
Issues not leading to amendments We believe that several issues discussed during the hearing of evi­ dence and consideration are noteworthy, although they did not result in any recommended amendment to the bill.
Decompilation of computer program Some submitters are concerned about the effect of new section 80A(3)(d) (clause 43), which provides that it would be illegal for a user of a copy of a copyrighted computer program to use the information obtained from decompiling the program to create a substantially similar program.
We consider that new section 80A(3)(d) would not prohibit decom­ piling a copy of a copyrighted computer program for the purpose of developing other products that would be easily distinguishable from the original program and therefore would not act as a barrier to inno­ vation.
To ensure that new section 80A(3)(d) is not used to restrict competi­ tion in the software market, we do however urge the Ministry of Eco­ nomic Development to monitor closely the effect of this new section after the enactment of this legislation.
“Notice and takedown” provision We note concerns raised by submitters, but consider that the “notice and takedown” provision proposed in new section 92C (clause 53) is consistent with the comparable legislation in other jurisdictions such as the United States of America, the European Union, and Australia.

An Internet service provider is in a unique position to be able to take down infringing and potentially harmful material, and should have an obligation to do so when it becomes aware of the material.
Commentary Copyright (New Technologies and Performers’ Rights) Amendment Bill 11 Issues requiring further review We have identiﬁed several signiﬁcant policy issues that are outside the scope of this bill or cannot be resolved within the scheduled time frame for the passing of this legislation.

We urge the Associate Min­ ister of Commerce to review these issues without delay.
Off­air recordings of television programmes to educational establishments The Ministry of Economic Development is reviewing the effect of new section 48 (clause 28) to establish whether it would apply to off­air recordings of broadcast television programmes provided to an educational establishment by an external agent.

We were not able to resolve this issue in the time available.

The ministry will report to the Associate Minister of Commerce in September 2007.
Directors’ rights A submitter asserted that ﬁlm directors should be deﬁned as “au­ thors” under the principal Act and thus as the copyright owners of ﬁlms.

This is an issue which requires attention.

However, it cannot be considered as part of this reform.

One of the reasons for this is that other interest groups that may want to make submissions have not had an opportunity to do so.

The Ministry of Economic Devel­ opment has advised us that it will commence work on this issue in early 2008.
Orphaned works Some submitters suggested that the principal Act should pro­ vide a process that enables the legitimate copying of “orphaned works”—copyright works whose copyright owner is unknown, cannot be located, or has ceased to exist.

The Ministry of Economic Development gave us an undertaking that it would conduct a review of this issue and report to the Associate Minister of Commerce in 2007.
Access to works for print­disabled persons Some submitters sought amendment to section 69 of the principal Act, which prescribes the conditions under which organisations 12 Copyright (New Technologies and Performers’ Rights) Amendment Bill Commentary may make adaptations of works for print­disabled people without infringing copyright.
They highlighted the issue of the distribution of adapted works to print­disabled persons, by sending copies of adapted works to and receiving copies from overseas organisations serving print­disabled persons.

The Ministry of Economic Development advised us that it will con­ sult the Royal New Zealand Foundation of the Blind, the Association of Blind Citizens of New Zealand, and copyright owner groups on this issue.
The ministry intends to report to the Associate Minister of Commerce by September 2007 on the options for addressing the issue.

Commentary Copyright (New Technologies and Performers’ Rights) Amendment Bill 13 Appendix Committee process The Copyright (New Technologies and Performers’ Rights) Amend­ ment Bill was referred to the committee on 12 December 2006.

The closing date for submissions was 9 March 2007.

We received and considered 66 submissions from interested groups and individuals.
We heard 45 submissions, which included holding hearings in Auck­ land.

We received advice from the Ministry of Economic Development, and independent specialist advisory services were provided to us by Earl Gray and Geoff McLay.
Committee membership Gerry Brownlee (Chairperson) Charles Chauvel (until 21 February 2007) Gordon Copeland (Deputy Chairperson) Dave Hereora (from 21 February 2007) Shane Jones Hon Luamanuvao Winnie Laban Simon Power Maryan Street Lindsay Tisch Dr Richard Worth Nandor Tanczos was a non­voting member for the consideration of this item of business.
Copyright (New Technologies and Performers’ Rights) Amendment Bill Key to symbols used in reprinted bill As reported from a select committee text inserted by a majority text inserted unanimously text deleted unanimously Hon Judith Tizard Copyright (New Technologies and Performers’ Rights) Amendment Bill Government Bill Contents 1 2 2A Title Commencement Principal Act amended Part 1 Amendments to Parts 1 to 5 of Copyright Act 1994 Interpretation New section 3 substituted 3 Associated deﬁnitions for purposes of communicating Section 4 repealed Meaning of author Meaning of work of joint authorship Meaning of publication Meaning of infringing copy Copyright in original works Acts restricted by copyright New section 20 substituted 20 Qualiﬁcation by reference to origin of communication work Duration of copyright in literary, dramatic, musical, or artistic works Duration of copyright in sound recordings and ﬁlms 102—2 Page 6 6 7 7 8 8 9 9 9 9 10 10 10 10 10 10 11 1 Copyright (New Technologies and Performers’ Rights) Amendment Bill Incidental copying of copyright work Infringement by communicating to public New section 24 substituted 24 Duration of copyright in communication works Infringement by performance or playing or showing in public New section 33 substituted 33 Infringement by importation Providing means for making infringing copies New section 41 substituted 41 Criticism, review, and news reporting Research or private study New section 43A inserted 43A Copying for educational
 purposes of literary, dramatic, musical, or artistic works or typographical arrangements New section 44A inserted 44A Storing copies for educational purposes Copying for educational purposes of ﬁlms and sound recordings Performing, playing, or showing work in course of activities of educational establishment New section 48 substituted 48 Transient reproduction of work Educational establishment may copy and communicate communication work Interpretation Copying by librarians of parts of published works Copying by
 librarians of articles in periodicals Copying by librarians for users of other libraries Copying by librarians for collections of other libraries Copying by librarians or archivists to replace copies of works Copying by librarians or archivists of certain unpublished works New sections 56A to 56C inserted 56A Library or archive may communicate digital copy to authenticated users Additional conditions for supply of copy of work in digital format by librarian or archivist under section 51, 52, or 56 Additional condition for making digital copies under section 53 or 54 56B 56C Copyright (New Technologies and Performers’ Rights) Amendment Bill Copying by Parliamentary Library for members of Parliament Use of recording of spoken words in certain cases Provision of Braille copies of literary or dramatic works Public reading or recitation Representation of certain artistic works on public display New sections 80A to 80C inserted 80A 80B Decompilation of computer program Copying or adapting computer program if necessary for lawful use 80BA Observing, studying, or testing of computer 80C program Certain contractual terms relating to use of computer programs have no effect New section 81A inserted 81A Copying sound recording for personal use New heading and new sections 82 to 84 substituted Communication works 82
 Recording for purposes of maintaining standards in programmes Recording for purposes of complaining 83 84 Recording for purposes of time shifting Incidental recording for purposes of broadcast or cable programme Section 86 repealed New sections 87 to 87B substituted 87 Free public playing or showing of communication work Free public playing or showing of communication work that is simultaneous with reception Assessment of damages for infringement of copyright in sound recording or ﬁlm 87A 87B New section
 89 substituted 89 Provision of subtitled copies of communication work Recording for archival purposes Recording by media monitors New heading and new sections 92A to 92C inserted Internet service provider liability Copyright (New Technologies and Performers’ Rights) Amendment Bill 92B 92C Internet service provider liability if user infringes copyright Internet service provider liability for storing infringing material 92CA Notice of infringement 92CB Offences in relation to notice of infringement 92D Internet service provider does not infringe copyright by caching infringing material Subsequent dealings with copies made under this Part Right to be identiﬁed as author or director Content of right to be identiﬁed Exceptions to right to be identiﬁed Content of right to object to derogatory treatment Exceptions to right to object to derogatory treatment of ﬁlms False attribution of identity of author or director False representation as to literary, dramatic, or musical work Right to privacy of certain photographs and ﬁlms New sections 112 to 112B substituted 112 Warranty implied in certain licences 112A Damages for falsely claiming copyright ownership or licence 112B Provisions of sections 112 and 112A to have effect no matter what licence says Part 2 Amendments to Parts 6 to 11 of Copyright Act 1994 Presumptions relevant to computer
 programs, sound recordings, and ﬁlms Unjustiﬁed proceedings Criminal liability for making or dealing with infringing objects Works of more than one author Licensing schemes to which sections 149 to 155 apply Licences to which sections 157 to 160 apply New section 163 substituted 163 Licences for educational establishments in respect of works included in communication works Licences to reﬂect conditions imposed by promoters of events 32 33 34 34 35 36 37 37 38 38 39 39 40 40 40 40 41 41 42 42 42 42 42 43 43 43
 43 54 55 56 57 58 59 60 61 62 63 64 64A 65 66 67 68 69 70 4 Copyright (New Technologies and Performers’ Rights) Amendment Bill Licences to reﬂect payments in respect of underlying rights Licences in respect of works included in retransmissions Determination of equitable remuneration Interpretation Application Consent required for recording or live transmission of performance New section 172 substituted 172 Infringement by use of recording made without performer’s consent Incidental inclusion of performance or recording New section 175A inserted 175A Transient reproduction of recording of performance Playing or showing sound recording, ﬁlm, broadcast, or cable programme at educational establishment Recording of broadcasts and cable programmes by educational establishment Use of recordings of spoken works in certain cases New section 187 substituted 187 Incidental recording for purposes of communication work New sections 188 to 188B substituted 188 Free public playing or showing of communication work 188A Free public playing or showing of communication work that is simultaneous with reception 188B Assessment of damages for infringement of rights under this Part in relation to performance or recording Section 189 repealed New section 190 substituted 190 Provision of subtitled copies of communication work New section 191 substituted 191 Recording of communication work for archival purposes Criminal liability for making, dealing with, using, or copying illicit
 recordings New heading and new sections 226 to 226J substituted cl 1 Copyright (New Technologies and Performers’ Rights) Amendment Bill Technological protection measures Deﬁnitions of TPM terms 226 226A Prohibited conduct in relation to technological protection measure 226B Rights of issuer of TPM work 226C Offence of contravening section 226A 226D When rights of issuer of TPM
 work do not apply 226E User’s options if prevented from exercising permitted act by TPM Copyright management information 226F Meaning of copyright management information 226G Interference with CMI prohibited 226H Commercial dealing in work subject to CMI interference Contravention of section 226G or 226H 226I 226J Offence of dealing in work subject to CMI interference 90 91 92 93 94 95 Offence of fraudulently receiving programmes Rights and remedies in respect of apparatus, etc, for unauthorised reception of transmissions Supplementary provisions as to fraudulent reception Application to Convention countries Application of Act (other than Part 9) to other entities Regulations 51 52 52 53 54 55 56 57 57 57 57 58 58 58 58 58 59 The Parliament of New Zealand enacts as follows: 1 2 (1) Title This Act is the Copyright (New Technologies and Performers’ Rights) Amendment Act 2006.
Commencement This Act comes into force on a date to be appointed by the Governor­General by Order in Council.

5 (2) One or more Orders in Council may be made appointing dif­ ferent dates for the commencement of different provisions.

6 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 3 2A Principal Act amended This Act amends the Copyright Act 1994.
Part 1 Amendments to Parts 1 to 5 of Copyright Act 1994 5 3 (1) (2) 10 Interpretation Section 2(1) is amended by repealing the deﬁnition of broad­ cast.
Section 2(1) is amended by inserting the following deﬁnitions in their appropriate alphabetical order: “CMI or copyright management information has the mean­ ing given to it in section 226F section 226F226F section “communicate means to transmit or make available by means of a communication technology, including by means of a telecommunications system or electronic retrieval system, 15 and communication has a corresponding meaning “communication work means a transmission, or the making available by a communication technology, of sounds, visual images, or other information, or a combination of any of those, for reception by members of the public, and includes a broad­ 20 cast or a cable programme “Internet service provider means an entity offering the trans­ mission, routing, or providing of connections for digital online communications, between or among points speciﬁed by a user, of material of the user’s choosing “Internet service provider means a person who does either or both of the following things: “(a) offers the transmission, routing, or providing of con­ nections for digital online communications, between or among points speciﬁed by a user, of material of the 30 user’s choosing: 25 “(b) hosts material on websites or other electronic retrieval systems that can be accessed by a user “TPM or technological protection measure has the meaning given to it in section section 226226226 section “TPM work has the meaning given to it in section section 226226226 section 35 7 Part 1 cl 4 Copyright (New Technologies
 and Performers’ Rights) Amendment Bill (3) (4) (5) “TPM spoiler has the meaning given to it in ssseeeccctttiiiooonnn 222222666 “TPM spoiling circumvention device has the meaning given to it in section section 226226226.” section Section 2(1) is amended by repealing paragraphs (a) and (b) of the deﬁnition of copying and substituting the following para­ 5 graph: “(a) means, in relation to any description of work, reprodu­ cing, recording, or storing the work in any material form (including any digital format), in any medium and by any means; and”.
10 Section 2(1) is amended by repealing paragraph (d) of the def­ inition of copying and substituting the following paragraph: “(d) includes, in relation to a ﬁlm or communication work, the making of a photograph of the whole or any sub­ stantial part of any image forming part of the ﬁlm or 15 communication work—”.
Section 2(1) is amended by repealing paragraphs (c) to (e) of the deﬁnition of material time and substituting the following paragraphs: “(c) in relation to a communication work, means when the 20 work is made or received in New Zealand; and in relation to a typographical arrangement of a pub­ lished edition, means when the edition is ﬁrst pub­ lished”.
“(d) (6) Section 2(1) is amended by omitting “broadcast, or cable pro­ 25 gramme” from paragraph (b) of the deﬁnition of performance and substituting “or communication work”.
4 New section 3 substituted Section 3 is repealed and the following section substituted: “3 Associated deﬁnitions for purposes of communicating “(1) References in this Act to a person communicating a work or 30 making a communication work are— “(a) to the person transmitting the work or making it avail­ able by means of a communication technology, if that person has responsibility to any extent for its contents; 35 and 8 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 8 “(b) any person who makes with the person communicating the work the arrangements necessary for its communi­ cation.
“(2) For the purposes of this Act, in the case of communicating a work by satellite transmission,— “(a) the place from which the work is communicated is the place from which the signals carrying the work are transmitted to the satellite: and the person communicating the work is the person who transmits those signals to the satellite.” “(b) 5 6 7 Section 4 repealed Section 4 is repealed.
Meaning of author Section 5(2) is amended by repealing paragraphs (c) to (e) and substituting the following paragraphs: “(c) in the case of a communication work, the person who makes the communication work: in the case of a typographical arrangement of a pub­ lished edition, the publisher.” “(d) Meaning of work of joint authorship Section 6 is amended by repealing subsection (2) and substi­ tuting the following subsection: “(2) A communication work must be treated as a work of joint au­ thorship in any case where more than 1 person is to be taken as making the communication work.” 8 (1) (2) (3) Meaning of publication Section 10(4)(a)(ii) is amended by omitting “the broadcasting of the work or its inclusion in a cable programme service” and substituting “the communication of the work to the public”.
Section 10(4)(b)(iii) is amended by omitting “the broadcasting 30 of the work or its inclusion in a cable programme service” and substituting “the communication of the work to the public”.
Section 10(4)(d) is amended by repealing subparagraph (ii) and substituting the following paragraph: 9 Part 1 cl 9 Copyright (New Technologies and Performers’ Rights) Amendment Bill “(ii) the communication of the work to the public.” 9 Meaning of infringing copy Section 12(5) is amended by repealing paragraph (a) and sub­ stituting the following paragraph: “(a) section 85(4) (which relates to incidental recording for 5 the purposes of a communication work):”.
10 (1) Copyright in original works Section 14 is amended by repealing subsection (1) and substi­ tuting the following subsection: “(1) Copyright is a property right that exists, in accordance with 10 this Act, in original works of the following descriptions: literary, dramatic, musical, or artistic works: “(a) sound recordings: “(b) “(c) ﬁlms: “(d) “(e) Section 14 is amended by repealing subsection (3).
communication works: typographical arrangements of published editions.” Acts restricted by copyright Section 16(1) is amended by repealing paragraph (f) and sub­ stituting the following paragraph: “(f) to communicate the work to the public:”.
(2) 11 12 New section 20 substituted Section 20 is repealed and the following section substituted: “20 Qualiﬁcation by reference to origin of communication work A communication work qualiﬁes for copyright if it is made from— “(a) “(b) a place in New Zealand; or a place in a prescribed foreign country.” Duration of copyright in literary, dramatic, musical, or artistic works Section 22 is amended by repealing subsection (4) and substi­ tuting the following subsection: 13 10 15 20 25 30 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 15 “(4) For the purposes of subsection (3), the circumstances in which a work may be made available to the public include,— “(a) performance in public: communication to the public: in the case of a literary, dramatic, or musical work,— “(i) “(ii) in the case of an artistic work,— exhibition in public: “(i) the playing or showing in public of a ﬁlm that “(ii) includes the work: “(b) “(iii) communication to the public.” 14 Duration of copyright in sound recordings and ﬁlms Section 23 is amended by repealing subsection (2) and substi­ tuting the following subsection: “(2) For the purposes of subsection (1), a sound recording or ﬁlm is made available to the public when— “(a) the work is ﬁrst— published; or “(i) communicated to the public; or “(ii) in the case of a ﬁlm or ﬁlm sound track,— the work is ﬁrst shown in public; or “(i) the work is ﬁrst played in public.” “(ii) “(b) 5 10 15 20 15 New section 24 substituted Section 24 is repealed and the following
 section substituted: “24 Duration of copyright in communication works “(1) Copyright in a communication work expires at the end of the 25 period of 50 years from the end of the calendar year in which the communication work is ﬁrst communicated to the public.
“(2) Copyright in a repeated communication work expires at the same time as copyright in the initial communication work ex­ pires.
30 “(3) There is no copyright in a repeated communication work that is communicated to the public after copyright in the initial com­ munication work has expired.” 11 Part 1 cl 16 Copyright (New Technologies and Performers’ Rights) Amendment Bill 16 17 “33 18 (1) (2) 19 Infringement by performance or playing or showing in public Section 32(2) is amended by omitting “broadcast, or cable pro­ gramme” and substituting “or communication work”.
New section 33 substituted Section 33 is repealed and the following section substituted: Infringement by communicating to public Communicating a work to the public is a restricted act in rela­ tion to every description of copyright work.” 5 Infringement by importation Section 35(1)(c) is amended by omitting “or” and substituting “and”.

Section 35(5) is amended by omitting “this Act” and substi­ tuting “the Copyright (Parallel Importation of Films and Onus of Proof) Amendment Act 2003”.
10 15 Providing means for making infringing copies Section 37 is amended by repealing subsection (2) and substi­ tuting the following subsection: “(2) Copyright in a work is infringed by a person who, other than under a copyright licence, communicates a work to 1 or more 20 persons, knowing or having reason to believe that infringing copies will be made by means of the reception of the commu­ nication in New Zealand or elsewhere.” 20 New section 41 substituted Section 41 is repealed and the following section substituted: Incidental copying of copyright work “41 “(1) Copyright in a work is not infringed by— 25 “(a) “(b) the incidental copying of the work in an artistic work, a sound recording, a ﬁlm, or a communication work; or the issue to the public of copies of an artistic work, the 30 playing of a sound recording, the showing of a ﬁlm, or the communication of a work to the public, in which a copyright work has been incidentally copied; or 12 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 23 “(c) the issue to the public of copies of a sound recording, ﬁlm, or communication work to which parparparaaagggrrraaaphphph (a)(a)(a) or parparparaaagggrrraaaphphph (b)(b)(b) applies.
subsection (1)(1)(1), a musical work, words “(2) For the purposes of subsection subsection spoken or sung with music, or so much of a sound recording 5 or communication work as includes a musical work or those words, must not be regarded as incidentally copied in another work if the musical work or the words, sound recording, or communication work is deliberately copied.” 21 Criticism, review, and news reporting Section 42 is amended by repealing subsection (2) and substi­ tuting the following subsection: “(2) Fair dealing with a work for the purpose of reporting current events by means of a sound recording, ﬁlm, or communication work does not infringe copyright in the work.” 10 15 22 Research or private study Section 43 is amended by repealing subsection (4) and substi­ tuting the following subsection: “(4) This section does not authorise the making of more than 1 copy of the same work, or the same part of a work, on any 20 1 occasion, but in this subsection copy does not include a non­infringing transient reproduction to which section section 43A43A43A section applies.” 23 New section 43A inserted The following section is inserted after section 43: 25 “43A Transient reproduction of work A reproduction of a work does not infringe copyright in the work if the reproduction— “(a) “(b) is transient or incidental; and is a necessary an integral and essential part of a techno­ 30 logical process for— “(i) making or receiving a communication that does “(ii) not infringe copyright; or enabling the lawful use of, or
 lawful dealing in, the work; and 35 “(c) has no independent economic signiﬁcance.” 13 Part 1 cl 24 Copyright (New Technologies and Performers’ Rights) Amendment Bill 24 Copying for educational purposes of literary, dramatic, musical, or artistic works or typographical arrangements Section 44 is amended by inserting the following subsections subsection after subsection (4): “(4A) A digital copy of a work made in accordance with subsections 5 (3) and (4) may be supplied to an authenticated user.
“(4B) In sssuuubbbssseeeccctttiiiooonnn (((444AAA))), authenticated user means a person who is a student or other person who is to receive, is receiving, or has received, a lesson that relates to the work.
“(4A) A copy of a work made in accordance with subsections (3) 10 and (4) may be communicated to a person who is a student or other person who is to receive, is receiving, or has received, a lesson that relates to the work.” 15 20 25 New section 44A inserted The following section is inserted after section 44: “44A Storing copies for educational purposes “(1) An educational establishment does not infringe copyright in a work that is made available on a website or other electronic retrieval system by storing a copy of the page or pages in which the work appears if— “(a) “(b) the material is stored for an educational purpose; and the material— “(i) is displayed under a separate frame or identiﬁer; and identiﬁes the author (if known) and source of the 25 work; and “(ii) “(iii) states the name of the educational establishment and the date on which the work was stored; and identiﬁes the course of instruction for which the material is stored; and “(iv) the material is restricted to use by authenticated users.
the material is not available for use by authenticated users until it has been removed from the website or other electronic retrieval system on which it has been made available.
30 35 “(c) “(d) Subsection (1)(1)(1) does not apply, and the educational estab­ “(2) Subsection Subsection lishment does infringe copyright in the work, if the educa­ tional establishment knowingly fails to delete the stored ma­ 14 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 28 “(3) terial within a reasonable time after the material becomes no longer relevant to the course of instruction for which it was stored.
subsection (1)(1)(1), authenticated user means a person In subsection subsection who— “(a) is a participant in the course of instruction for which the material is stored; and can access the stored material only through a veriﬁca­ tion process that veriﬁes that he or she is entitled to ac­ cess the stored material.” “(b) 5 10 26 Copying for educational purposes of ﬁlms and sound recordings Section 45 is amended by repealing subsection (1) and substi­ tuting the following subsection: “(1) Copyright in any work that is a ﬁlm, sound recording, or 15 communication work, or any work included in a ﬁlm, sound recording, or communication work, is not infringed by the copying of that work in the circumstances set out in subsection (2).” 27 Performing, playing, or showing work in course of activities of educational establishment Section 47 is amended by repealing subsection (2) and substi­ tuting the following subsection: 20 “(2) The playing or showing, for the purposes of instruction, of a sound recording, ﬁlm, or communication work to the audience 25 described in subsection (1) at an educational establishment is not a playing or showing of the work in public for the purposes of section 32(2).” 28 New section 48 substituted Section 48 is repealed and the following section substituted: 30 “48 Educational establishment may record copy and communicate communication work “(1) A recording copy of a communication work, or a copy of that recording, may be made or communicated by or on behalf of an educational establishment, and subsequently communi­ 35 cated within that educational establishment, without infringing 15 Part 1 cl 29 Copyright (New Technologies and Performers’ Rights) Amendment Bill copyright in the communication work or in any work included in it, if the recording copy is made or communicated for the establishment’s educational purposes.
subsection (1)(1)(1) does not apply to— “(2) However, subsection subsection “(a) “(b) the making of a recording or the copying of a commu­ 5 nication work if or to the extent that— “(i) licences authorising the recording copying of the communication work by or on behalf of educa­ tional establishments are available under a licens­ ing scheme; and the establishment knew that fact; or “(ii) the communication of a recording copy of a communi­ cation work or a copy of a recording if or to the extent that— “(i) licences authorising the communication of the 15 recording or a copy of that recording copy by or on behalf of educational establishments are avail­ able under a licensing scheme; and the establishment knew that fact.” “(ii) 10 29 30 “(5) 31 “(4) Interpretation Section 50(1) and (2) are amended by omitting “sections 51 to 56 of this Act” and substituting in each case “sections 51 to 56C56C56C”.
Copying by librarians of parts of published works Section 51 is amended by adding the following subsection: In this section, copy includes a digital copy, but in that case section 56B56B56B applies as well.” section section 20 25 Copying by librarians of articles in periodicals Section 52 is amended by adding the following subsection: In this section, copy includes a digital copy, but in that case 30 section 56B56B56B applies as well.” section section 32 Copying by librarians for users of other libraries Section 53 is amended by adding the following subsection: 16 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 35 “(5) In this section, copy includes a digital copy, but in that case section 56C56C56C applies as well.” section section 33 “(5) 34 (1) Copying by librarians for collections of other libraries Section 54 is amended by adding the following subsection: In this section, copy includes a digital copy, but in that case 5 section 56C56C56C applies as well.” section section Copying by librarians or archivists to replace copies of works Section 55(1) is amended by inserting “(other than a digital copy)” after “copy” in the ﬁrst place where it appears.
Section 55 is amended by adding the following subsections: (2) “(3) The librarian of a prescribed library or the archivist of an archive may make a digital copy of any item (the original item) in the collection of the library or archive without infring­ ing copyright in any work included in the item if— “(a) 10 15 the original item is at risk of loss, damage, or destruc­ tion; and the digital copy replaces the original item; and the original item is not accessible by members of the public after replacement by the digital copy except for 20 purposes of research the nature of which requires or may beneﬁt from access to the original item; and it is not reasonably practicable to purchase a copy of the original item.
“(b) “(c) “(d) “(4) The librarian of a prescribed library or the archivist of an 25 archive may make a digital copy of any item (the original item) in the collection of the library or archive without infring­ ing copyright in any work included in the item if— “(a) the digital copy is used to replace an item in the col­ lection of another prescribed library or archive that has 30 been lost, damaged, or destroyed; and it is not reasonably practicable to purchase a copy of the original item.” “(b) 35 Copying by librarians or archivists of certain unpublished works Section 56 is amended by adding the following subsection: 35 17 Part 1 cl 36 Copyright (New Technologies and Performers’ Rights) Amendment Bill “(6) In this section, copy includes a digital copy, but in that case section 56B56B56B applies as well.” section section 36 New sections 56A to 56C inserted The following sections are inserted after section 56: “56A Library or archive may allow access to work in digital format “(1) The librarian of a prescribed library or the archivist of an archive that lawfully obtains a work in digital format may al­ low users access to that copy by means of— “(a) “(b) terminals on site (on­site access); or terminals off site (remote access).
“(2) On­site access is subject to the following restrictions: “(a) “(b) the librarian or archivist must ensure that all users are informed in writing about the limits of copying or com­ munication that is allowed by this Act: the work in digital format may be copied or communi­ cated by a user only in accordance with the provisions of this Act.
“(3) Remote access is subject to the following restrictions: 5 10 15 “(a) “(b) the work in digital format must be in a form that cannot 20 be altered or erased: the work in digital format may be accessed only by a person who has a legitimate right to use the library or archive (in this subsection called an authenticated user).
25 In the case of both on­site access and remote access, the work in digital format may be accessed at any one time only by so many users as the number of that work in digital format that— “(a) “(b) the library or archive has purchased; or for which it is licensed.
30 “(4) “56A Library or archive may communicate digital copy to authenticated users “(1) The librarian of a prescribed library or the archivist of an archive does not infringe copyright in a work by communi­ cating a digital copy of the work to an authenticated user if the 35 following conditions are met: 18 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 36 “(a) “(b) “(c) “(d) the librarian or archivist has obtained the digital copy lawfully; and the librarian or archivist ensures that each user is in­ formed in writing about the limits of copying and com­ munication allowed by this Act, including that a digital 5 copy of a work may only be copied or communicated by the user in accordance with the provisions of this Act; and the digital copy is communicated to the user in a form that cannot be altered or modiﬁed; and the number of users who access the digital copy at any one time is not more than the aggregate number of dig­ ital copies of the work that— “(i) “(ii) the library or the archive has purchased; and for which it is licensed.
10 15 “(2) In sssuuubbbssseeeccctttiiiooonnn (((111))), authenticated user means a person who— “(a) has a legitimate right to use the services of the library or archive; and can access the digital copy only through a veriﬁcation 20 process that veriﬁes that the person is entitled to access the digital copy.
“(b) “56B Additional conditions for supply of copy of work in digital 25 format by librarian or archivist under section 51, or 52, or 56 A copy of a work to which section 51, 52, or 56 applies must not be supplied in a digital format, by the librarian of a pre­ scribed library or the archivist of an archive, to a person (A) unless the following conditions are also complied with: “(a) A must make a written request to the librarian or 30 archivist for a digital copy identifying the work and stating the purpose for which the material will be used; and the librarian or archivist must declare in writing that the provisions of the Act governing the supply of the digital 35 copy have been complied with; and the librarian or archivist must supply the copy in ques­ tion to A only, and not to any other person; and “(b) “(c) 19 Part 1 cl 37 Copyright (New Technologies and Performers’ Rights) Amendment Bill “(d) “(e) the librarian or archivist must give A, when the copy is supplied, a written notice that sets out the terms of use of the copy; and the librarian or archivist must, as soon as is reasonably practicable, destroy any additional copy made in the 5 process of making the copy that is supplied to A.
“56C Additional conditions for making digital copies under section 53 or section 54 A copy of a work to which section 53 or section 54 applies must not be supplied in a digital format to a library unless the 10 following conditions are complied with: “(a) the library requesting the supply of a digital copy must make the request in writing to the librarian supplying the copy, and must state in its request the purpose for which the copy is required; and the librarian supplying the copy must declare in writing that the provisions of the Act governing the supply of the copy have been complied with; and the librarian supplying the digital copy must, as soon as is reasonably practicable, destroy any additional copy 20 made in the process of making the copy that is supplied.
15 “(b) “(c) “56C Additional condition for making digital copies under section 53 or 54 A copy of a work to which section 53 or 54 applies must not be supplied in a digital format to a library unless the librarian 25 supplying the digital copy destroys, as soon as is reasonably practicable, any additional copy made in the process of making the copy that is supplied.” 37 New section 57A inserted The following section is inserted after section 57: 30 “57A Retention and inspection of declaration “(1) A librarian or archivist who makes a declaration under ssseeeccc­­­ tttiiiooonnn 555666BBB ooorrr ssseeeccctttiiiooonnn 555666CCC must retain the declaration for the period of 3 years after it is made.
“(2) The copyright owner of the work to which the declaration re­ 35 lates or that person’s agent may inspect the declaration by giv­ 20 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 39 ing the librarian or archivist notice to inspect it during the or­ dinary working hours of the library or archive on a working day.

“(3) The notice to inspect must nominate a day for inspection that is not earlier than 5 working days after the librarian or archivist 5 receives the notice.
“(4) Subject to sssuuubbbssseeeccctttiiiooonnn (((555))), a librarian or archivist who has been given a notice to inspect in accordance with this section must— “(a) “(b) “(c) if notice is given to inspect more than 1 declaration, 10 arrange the declarations in chronological order; and allow the copyright owner or that person’s agent to in­ spect the declaration or declarations on the day nomin­ ated in the notice to inspect; and provide the copyright owner or that person’s agent with 15 reasonable facilities and assistance for the purpose of the inspection.
“(5) A librarian or archivist who has been given a notice of inspec­ tion in accordance with this section may refuse inspection un­ less the identity of the person inspecting has been veriﬁed as 20 the copyright owner or that person’s agent by documentary or other evidence reasonably capable of establishing identity.” 38 39 (1) (2) Copying by Parliamentary Library for members of Parliament Section 58(2) is amended by omitting “broadcast or cable pro­ 25 gramme” in each place where it appears and substituting in each case “communication work”.
Use of recording of spoken words in certain cases Section 68(1)(b) is amended by omitting “broadcasting or in­ cluding in a cable programme service” and substituting “com­ 30 municating to the public”.

Section 68(2)(a) is amended by omitting “broadcast or cable programme” and substituting “communication work”.
21 Part 1 cl 40 Copyright (New Technologies and Performers’ Rights) Amendment Bill 40 41 Provision of Braille copies of literary or dramatic works Section 69(1) is amended by inserting “or communicate” after “make”.
Public reading or recitation Section 70 is amended by repealing subsection (2) and substi­ 5 tuting the following subsection: “(2) Copyright in a work is not infringed by the making of a sound recording, or the communication to the public, of a reading or recitation that under subsection (1) is not treated as a per­ formance in public, if the recording or communication work 10 consists mainly of material in relation to which it is not neces­ sary to rely on that subsection.” 42 (1) Representation of certain artistic works on public display Section 73(2) is amended by repealing paragraph (c) and sub­ stituting the following paragraph: “(c) communicating to the public a visual image of the work.” 15 (2) Section 73 is amended by repealing subsection (3) and substi­ tuting the following subsection: “(3) Copyright is not infringed by the issue to the public of copies, 20 or the communication to the public, of anything the making of which was, under this section, not an infringement of copy­ right.” 43 New sections 80A to 80C inserted The following sections are inserted after section 80: “80A Decompilation of computer program “(1) The lawful user of a copy of a computer program expressed in a low level language does not infringe copyright in the pro­ gram by decompiling it, if the conditions in subsection subsection (2)(2)(2) subsection are met.
subsection (1)(1)(1) are that— “(2) The conditions referred to in subsection subsection “(a) decompilation is necessary to obtain information neces­ sary for the objective of creating an independent pro­ gram that can be operated with the program decompiled or with another program; and 25 30 35 22 “(3) “(4) “(4) Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 43 “(b) the information obtained from the decompilation is not used for any purpose other than the objective referred to in parparparaaagggrrraaaphphph (a)(a)(a).
“(c) “(b) subsection (2)(2)(2) are not met if— In particular, the conditions in subsection subsection the information necessary to create the independent pro­ 5 “(a) gram is readily available to the lawful user without de­ compiling the computer program; or the lawful user does not conﬁne decompilation of the computer program strictly to the steps that are necessary to create an independent program; or the lawful user gives the information obtained from de­ compiling the computer program to any person when it is not necessary for creating an independent program to do so; or the lawful user uses the information obtained from de­ 15 compiling the computer program to create a program that is substantially similar in its expression to the pro­ gram that has been decompiled; or the lawful user uses the information obtained from de­ compiling the computer program to do any act that is 20 restricted by copyright.
“(d) “(e) 10 In this section,— “decompile means— “(a) to convert a computer program expressed in a low level language into a version expressed in a high level lan­ 25 guage; or to copy the program as a necessary incident of convert­ ing it into that version “(b) 30 “high level language means a machine­independent computer programming language “low level language means a computer programming lan­ guage in electronic machine­readable form.
In this section, decompile means— “(a) to convert a computer program expressed in a low level language into a version expressed in a higher level lan­ 35 guage; or to copy the program as a necessary incident of convert­ ing it into that version.
“(b) 23 Part 1 cl 43 Copyright (New Technologies and Performers’ Rights) Amendment Bill “80B Copying or adapting computer program if necessary for lawful use “(1) The lawful user of a computer program (A) does not infringe copyright in it by copying or adapting it, if— “(a) copying or adapting it is necessary for A’s lawful use 5 of the program (for example, to correct an error in the program); and a properly functioning and error­free copy of the pro­ gram is not available to A within a reasonable time at an ordinary commercial price.
10 “(b) “(2) This section does not apply to copying or adapting that is per­ section 888000CCC 888000BBBAAA.
mitted under section section 80A80A80A ororor section section section “80BA Observing, studying, or testing of computer program The lawful user of a computer program (A) does not infringe copyright in it by observing, studying, or testing the func­ 15 tioning of the program in order to determine the ideas and principles that underlie any element of the program if A does so while performing the acts of loading, displaying, running, transmitting, or storing the program that A is entitled to do.
“80C Certain contractual terms relating to use of computer 20 programs have no effect A term or condition in an agreement for the use of a computer program has no effect in so far as it prohibits or restricts— “(a) any activity undertaken in compliance with the condi­ tions set out in ssseeeccctttiiiooonnn 888000AAA ooorrr ssseeeccctttiiiooonnn 888000BBB; or “(b) use of any device or means to observe, study, or test the functioning of the program in order to understand the ideas and principles that underlie any element of the program.
25 “80C Certain contractual terms relating to use of computer 30 programs have no effect A term or condition in an agreement for the use of a com­ puter program has no effect in so far as it prohibits or restricts any activity undertaken in accordance with ssseeeccctttiiiooonnn 888000AAA(((222))) ooorrr 888000BBB(((111))).” 35 24 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 44 44 New section 81A inserted The following section is inserted after section 81: “81A Copying sound recording for private and domestic use personal use “(1) Copyright in a sound recording and in a literary or musical 5 work contained in it is not infringed by copying the sound recording, if the following conditions are met: “(aa) the sound recording is not a communication work or “(a) “(e) “(d) “(b) “(c) part of a communication work; and the copy is made from a sound recording that is not an 10 infringing copy; and the sound recording is not borrowed or hired; and the copy is made by the owner of the sound recording; and thethat owner acquired the sound recording legiti­ 15 mately; and the copy is used only for that owner’s private and do­ mestic use personal use or the personal use of a member of the household in which the owner lives or both; and no more than 1 copy is made for each type of device for 20 playing sound recordings that is owned by the owner of the sound recording; and the owner of the sound recording retains the ownership of both the sound recording and of any copy that is made under this section.
subsection (1)(1)(1) does not apply if “(2) For the avoidance of doubt, subsection subsection the owner of the sound recording is bound by a contract that speciﬁes the circumstances in which the sound recording may be copied.
“(g) “(f) 25 “(3) This section expires after 2 years after the date on which it 30 came into force, but— “(a) the Governor­General may, by Order in Council made while this section is in force, extend the date of expiry for a further period of 2 years: the Governor­General may extend the date of expiry 35 under pppaaarrraaagggrrraaappphhh (((aaa))) more than once.” “(b) 25 Part 1 cl 45 Copyright (New Technologies and Performers’ Rights) Amendment Bill 45 New heading and new sections 82 to 84 substituted Sections 82 to 84, and the heading immediately above section 82 are repealed and the following heading and sections substi­ tuted: “Communication works 5 “82 Recording for purposes of maintaining standards in programmes The author of a communication work does not infringe copy­ right in it, or in any work included in it, by recording it, if the recording is made and used solely for the purpose of check­ 10 ing on the maintenance of standards in communication works made by the author.
“83 Recording for purposes of complaining “(1) A person (A) does not infringe copyright in a communication work, or in any work included in it, by recording it or commu­ 15 nicating it or both to a complaint authority, if the recording or the communication or both are done solely for the purpose of complaining to a complaint authority.
subsection (1)(1)(1) does not apply, and A does in­ “(2) However, subsection subsection fringe copyright in the communication work recorded and in 20 any work included in the recording, if A retains the record­ ing for any longer than is reasonably necessary to prepare and despatch the complaint.

If a person infringes copyright under subsection subsection (2)(2)(2), the subsection recording is treated as an infringing copy.
In this section and in section section 848484, complaint authority means section any person or body that is responsible for dealing with com­ plaints about the content of communication works, including the content of advertisements in communication works.
25 “(3) “(4) “84 Recording for purposes of time shifting “(1) A person (A) does not infringe copyright in a programme in­ cluded in a communication work, or in any work included in it, by recording it, if A— “(a) A makes the recording solely for A’s private and domes­ 30 tic use personal use or the personal use of a member of 35 the household in which A lives or both; and 26 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 46 “(b) A makes the recording solely for the purpose of viewing or listening to the recording at a more convenient time; and is not able lawfully to access the communication work on demand; and the recording is not made from an on­demand service; and “(c) “(c) 5 “(d) A has lawful access to the communication work at the time of making the recording.
subsection (1)(1)(1) does not apply, and A does infringe 10 “(2) However, subsection subsection copyright in the communication work recorded and in any work included in the communication work, if— “(a) A retains the recording for any longer than is reasonably necessary for viewing or listening to the recording at a more convenient time; or in the event that the person who views or listens to the recording wishes to make a complaint to a complaint authority, A retains the recording for any longer than is reasonably necessary to prepare and despatch the com­ plaint.
“(b) 15 20 “(3) If a person infringes copyright under subsection subsection (2)(2)(2), the subsection recording is treated as an infringing copy.” Example A records a movie to be screened on television because she will be at work when it screens.

She watches the movie on the weekend and then 25 later tapes over it.

Provided the conditions in s 84(1) are met, the copy that A makes is not an infringing copy.
B copies music from a streamed Internet audio service and keeps the copy as part of B’s music collection, in order to listen to it multiple times on demand.

Copies made for the home library or collection in this way 30 are infringing copies.

46 (1) (2) Incidental recording for purposes of broadcast or cable programme The heading to section 85 is amended by omitting “broadcast or cable programme” and substituting “communication”.
Section 85 is amended by repealing subsection (1) and substi­ tuting the following subsection: 35 27 Part 1 cl 47 Copyright (New Technologies and Performers’ Rights) Amendment Bill (3) (4) 47 48 “(1) This section applies where, under an assignment or a licence, a person is authorised to communicate the following works to the public: “(a) 5 a literary, dramatic, or musical work, or an adaptation of that work; or an artistic work; or a sound recording or ﬁlm.” “(b) “(c) Section 85(2) is amended by omitting “broadcast or cable pro­ gramme” and substituting “communication work”.
Section 85(3)(b) is amended by omitting “broadcasting the 10 work or, as the case may be, including the work in a cable programme” and substituting “communicating the work to the public”.

Section 86 repealed Section 86 is repealed.
15 New sections 87 to 87B substituted Section 87 is repealed and the following sections substituted: “87 Free public playing or showing of communication work “(1) The free public playing or showing of a communication work section 87A87A87A ap­ 20 (other than a communication work to which section section plies or a communication work for which a subscription fee must be paid in order to receive it) does not infringe any copy­ right in— “(a) “(b) the communication work; or any sound recording or ﬁlm included in the communi­ 25 cation work.
“(2) For the purposes of this section, the public playing or showing of a communication work is not free if— “(a) the audience has paid for admission to— “(i) the place where the communication work is 30 shown or played (which in this section is called the venue); or any place of which the venue is a part; or “(ii) “(b) goods or services are supplied at the venue or a place of which it forms part at prices that— 35 28 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 48 “(i) “(ii) are substantially attributable to the facilities af­ forded for hearing or seeing the communication work; or exceed those usually charged there and that are partly attributable to those facilities; or the venue is a hotel, motel, camping ground, or any other place that admits persons for a fee for purposes of temporary accommodation, and the audience is made up of persons residing at that hotel, motel, camping ground, or other place.
“(c) (2)(a), the following persons “(3) For the purposes of subsection subsection (2)(a) (2)(a) subsection must not be treated as having paid for admission to the venue: a person admitted as a resident or an inmate of a place “(a) (other than a hotel, motel, camping ground, or any other place to which subsection (2)(c) applies): subsection (2)(c) (2)(c) subsection a person admitted as a member of a club or society where the payment is only for membership of the club or society and the provision of facilities for hearing or seeing communication works is only incidental to the main purposes of the club or society.
“(b) 5 10 15 20 “87A Free public playing or showing of communication work that is simultaneous with reception “(1) This section applies to the playing or showing of a communi­ cation work that— “(a) is made for reception in the area in which it is played or 25 shown; and is not a satellite transmission or an encrypted transmis­ sion; and is not a communication work for which a subscription fee must be paid in order to receive it; and is shown or played simultaneously upon reception of the communication work.
30 “(b) “(b) “(c) “(2) The free public playing or showing of a communication work to which this section applies does not infringe any copyright in— “(a) “(b) the communication work; or any sound recording or ﬁlm that is played or shown in public by reception of the communication work.
35 29 Part 1 cl 49 Copyright (New Technologies and Performers’ Rights) Amendment Bill “(3) For the purposes of this section, the public playing or showing of a communication work is not free if— “(a) the audience has paid for admission to the place where the communication work is shown or played (which in this section is called the venue), including any place of 5 which the venue is a part; or “(b) goods or services are supplied at the venue or a place of which it forms part at prices that— “(i) are substantially attributable to the facilities af­ forded for hearing or seeing the communication 10 work; or exceed those usually charged there and that are partly attributable to those facilities.
“(ii) (3)(a), the following persons “(4) For the purposes of subsection subsection (3)(a) (3)(a) subsection must not be treated as having paid for admission to the venue: 15 a person admitted as a resident or an inmate of a place “(a) (including a person residing in a hotel, motel, camping ground, or any other place that admits persons for a fee for the purpose of temporary accommodation): a person admitted as a member of a club or society 20 where the payment is only for membership of the club or society and the provision of facilities for hearing or seeing communication works is only incidental to the main purposes of the club or society.
“(b) “87B Assessment of damages for infringement of copyright in 25 sound recording or ﬁlm Where the making of a communication work is an infringe­ ment of copyright, the fact that the work was heard or seen in public by the reception of the communication work must be taken into account in assessing the damages for the infringe­ 30 ment.” 49 Section 88 repealed Section 88 is amended by adding the following subsection: “(4) For the purposes of this section only,— “(a) sections 3 and 4 of this Act before repeal by the Copy­ 35 right (New Technologies) Amendment Act 2006 con­ tinue to apply as if they had not been repealed and as if 30 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 52 “(b) references in those provisions to ‘this Act’ were refer­ ences to this section; and the deﬁnition of broadcast in section 2(1) of this Act before repeal by the Copyright (New Technologies) Amendment Act 2006 continues to apply as if that 5 deﬁnition had not been repealed.” 50 New section 89 substituted Section 89 is repealed and the following section substituted: “89 Provision of subtitled copies of communication work “(1) A body prescribed by regulation made under this Act may, for 10 the purpose of providing people who are deaf or hard of hear­ ing, or physically or mentally disabled in any other way, with copies that are subtitled or otherwise modiﬁed for their special needs, make copies of a communication work and issue copies to the public, without infringing any copyright in the commu­ 15 nication work or in any work included in the communication work.
“(2) A body must not be prescribed for the purposes of subsection subsection subsection (1)(1)(1) if it is established or conducted for proﬁt.” 51 Recording for archival purposes Section 90 is amended by repealing subsection (1) and substi­ tuting the following subsection: “(1) A person (A) does not infringe copyright in a communication work, or in any work included in it, by recording it or making a copy of a recording of it, if— “(a) the communication work is in a class of communication work prescribed by regulations made under this Act; and “(b) A makes the recording or the copy for the purpose of 20 25 placing it in an archive maintained by a body prescribed 30 by regulations made under this Act.” 52 (1) Recording by media monitors Section 91 is amended by repealing subsection (1) and substi­ tuting the following subsections: 31 Part 1 cl 53 Copyright (New Technologies and Performers’ Rights) Amendment Bill “(1) This section applies to a recording, or a transcript of a record­ ing, of a communication work that consists wholly or substan­ tially of news or reports or discussions of current events.
“(1A) The person who makes the recording or transcript does not (2) (3) 53 infringe copyright in the communication work, or in any work 5 included in the communication work, if the conditions in subsubsub­­­ section (2)(2)(2) are complied with.” section section Section 91(2) is amended by omitting “subsection (1)” and substituting “subsection (1A)”.

Section 91(4) is amended by omitting “broadcasts or cable 10 programmes” and substituting “the communication work”.
New heading and new sections 92A to 92C inserted The following heading and sections are inserted after section 92: “Internet service provider liability 15 “92A Limitations on liability in sections 92B to 92D apply only to qualifying Internet service provider The limitations on liability in ssseeeccctttiiiooonnnsss 999222BBB tttooo 999222DDD apply only in respect of an Internet service provider that has adopted and reasonably implemented a policy that provides for termin­ 20 ation, in appropriate circumstances, of the accounts of repeat infringers.
“92B Internet service provider liability if user infringes copyright “(1) This section applies if a person (A) infringes the copyright in a 25 work by using 1 or more of the Internet services of an Internet service provider to do a restricted act without the consent of the copyright owner.
“(2) Merely because A uses the Internet services of the Internet ser­ vice provider in infringing the copyright, the Internet service 30 provider, without more,— “(a) “(b) must not be taken to have authorised A’s infringement does not infringe the copyright in the work: “(c) of copyright in the work: subsection (3)(3)(3), must not be subject to any 35 subject to subsection subsection civil remedy or criminal sanction.
32 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 53 “(3) However, nothing in this section limits the right of the copy­ right owner to injunctive relief against the Internet service provider in relation to A’s, or a related, infringement in re­ lation to A’s infringement or any infringement by the Internet service provider.
In sssuuubbbssseeeccctttiiiooonnnsss (((111))) aaannnddd (((222))), Internet services means the ser­ vices referred to in the deﬁnition of Internet service provider in section 2(1).
“(4) “92C Internet service provider liability for storing infringing material “(1) This section applies if— 5 10 “(a) “(b) an Internet service provider stores (but does not modify) material provided by a user of the service; and the material infringes copyright in a work (other than as a result of any modiﬁcation by the Internet service 15 provider).
“(2) The Internet service provider does not infringe copyright in the work by storing the material unless— the Internet service provider— “(a) “(i) knows or has reason to believe that the material 20 infringes copyright in the work; and “(ii) does not, as soon as possible after the Internet service provider becomes aware of the infringing material, delete the material or prevent access to it; or the Internet service provider knows that the material infringes copyright in the work; or 25 “(a) “(ba) the Internet service provider— “(i) has received a notice of infringement that com­ plies with ssseeeccctttiiiooonnn 999222CCCAAA; and 30 “(ii) does not, as soon as possible after becoming aware (whether as a result of receiving the notice or otherwise) of facts or circumstances that make it apparent that the material is likely to infringe copyright in the work, delete the material or 35 prevent access to it; or 33 Part 1 cl 53 Copyright (New Technologies and Performers’ Rights) Amendment Bill “(b) the user of the service who provided the material is act­ ing under the authority and control of on behalf of, or at the direction of, the Internet service provider.
“(3) An Internet service provider who deletes a user’s material or prevents access to it because the Internet service provider 5 knows or has reason to believe that it infringes copyright in a work must, as soon as possible, give notice to the user that the material has been deleted or access to it prevented.
“(4) Nothing in this section limits the right of the copyright owner to injunctive relief against the Internet service provider in rela­ 10 tion to a user’s infringement or any infringement by the Inter­ net service provider.

“92CA Notice of infringement A notice referred to in ssseeeccctttiiiooonnn 999222CCC(((222)))(((bbbaaa)))(((iii))) must be— “(a) “(b) “(c) properly completed; and in the prescribed form; and signed by the copyright owner or the copyright owner’s duly authorised agent.
“92CB Offences in relation to notice of infringement “(1) A person (A) commits an offence if— 15 20 “(a) A signs, or authorises another person to sign, a notice “(b) referred to in ssseeeccctttiiiooonnn 999222CCC(((222)))(((bbbaaa)))(((iii))); and the notice is false or misleading in a material particular; and “(c) A knows that the notice is false or misleading in a ma­ 25 terial particular or is reckless as to whether it is or not.
“(2) A person (B) commits an offence if— “(b) “(a) B has signed, or has authorised another person to sign, a notice referred to in ssseeeccctttiiiooonnn 999222CCC(((222)))(((bbbaaa)))(((iii))); and the notice is false or misleading in a material particular; 30 and after the notice is signed, B either knows that the notice is false or misleading in a material particular or is reck­ less as to whether it is or not; and “(c) “(d) does not take all reasonable steps to withdraw the no­ 35 tice.
34 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 53 “(3) A person who commits an offence under this section is liable on summary conviction,— “(a) in the case of an individual, to a ﬁne not exceeding $50,000; and in the case of a body corporate, to a ﬁne not exceeding 5 $100,000.

“(b) “(4) For the avoidance of doubt, if an individual acting on behalf of a body corporate commits an offence under this section, the body corporate also commits the offence.
“92D Internet service provider does not infringe copyright by 10 caching infringing material “(1) An Internet service provider does not infringe copyright in a work by caching material if the Internet service provider— “(a) “(b) does not modify the material; and complies with any conditions imposed by the copyright 15 owner of the material for access to that material; and does not interfere with the lawful use of technology to obtain data on the use of the material; and “(c) “(d) updates the material in accordance with reasonable in­ dustry practice.
“(2) However, an Internet service provider does infringe copyright in a work by caching material if the Internet service provider does not delete the material or prevent access to it by users as soon as possible after the Internet service provider became aware that— “(a) “(b) “(c) the material has been deleted from its original source; or access to the material at its original source has been prevented; or a court has ordered that the material be deleted from 30 its original source or that access to the material at its original source be prevented.
20 25 “(3) Nothing in this section limits the right of the copyright owner to injunctive relief against the Internet service provider in rela­ tion to a user’s infringement or any infringement by the Inter­ 35 net service provider.
In this section,— “(4) 35 Part 1 cl 54 Copyright (New Technologies and Performers’ Rights) Amendment Bill “cache means the storage of material by an Internet service provider that is— “(a) “(b) “(c) automatic controlled through an automated process; and temporary; and for the sole purpose of enabling the Internet service 5 provider to transmit the material more efﬁciently to other users of the service on their request “original source means the source from which the Internet service provider copied the material that is cached.” 54 Subsequent dealings with copies made under this Part Section 93 is amended by repealing subsection (2) and substi­ tuting the following subsection: 10 “(2) The provisions referred to in subsection (1) are as follows: 15 20 section 43A43A43A (which relates to transient reproduction of section section work): section 44 (which relates to copying for educational pur­ poses of literary, dramatic, musical, or artistic works or typographical arrangements): section 44A44A44A (which relates to storing for educational section section purposes): section 45 (which relates to copying for educational pur­ poses of ﬁlms and sound recordings): section 484848 (which relates to recording by educational section section establishments of communication works): section 49 (which relates to things done for the purposes 25 of an examination): section 51 (which relates to copying by librarians of parts of published works): section 52 (which relates to copying by librarians of articles in periodicals): section
 53 (which relates to copying by librarians for users of other libraries): section 55 (which relates to copying by librarians or archivists to replace copies of works): section 56 (which relates to copying by librarians or 35 archivists of certain unpublished works): sections 56A56A56A tototo 56C56C56C (which relate to access to and sections sections copying of works in digital format): 30 “(a) “(b) “(c) “(d) “(e) “(f) “(g) “(h) “(i) “(j) “(k) “(l) 36 Copyright (New Technologies and Performers’ Rights)
 Amendment Bill Part 1 cl 56 “(m) section 58 (which relates to copying by the Parliamen­ “(r) “(n) tary Library for members of Parliament): section 69 (which relates to the provision of Braille copies of literary or dramatic works): section 80A80A80A (which relates to the decompilation of 5 “(o) section section computer programs): section 80B80B80B (which relates to copying or adapting “(p) section section computer programs if necessary for lawful use): section 81A81A81A (which relates to copying sound record­ “(q) section section ings for private and domestic use): section 83 (which relates to recording for the purposes of complaining): section 848484 (which relates to recording for the purposes section section of time shifting): section 90 (which relates to recording for archival pur­ 15 poses): section 92B92B92B (which relates to Internet service provider “(u) section section liability for storing infringing material): section 92C92C92C (which relates to Internet service provider “(v) section section liability for caching infringing material).” “(s) “(t) 10 20 55 (1) (2) (3) 56 Right to be identiﬁed as author or director Section 94(2)(a) is amended by omitting “broadcast, or in­ cluded in a cable programme” and substituting “or commu­ nicated to the public”.
Section 94(6)(b) is amended by omitting “broadcast or in­ 25 cluded in a cable programme” and substituting “communi­ cated to the public”.

Section 94(8) is amended by repealing paragraph (a) and sub­ stituting the following paragraph: “(a) the ﬁlm is shown in public or communicated to the pub­ 30 lic; or”.

Content of right to be identiﬁed Section 95(1)(c) is amended by omitting “broadcast, cable pro­ gramme” and substituting “communication work”.
37 Part 1 cl 57 Copyright (New Technologies and Performers’ Rights) Amendment Bill 57 (1) Exceptions to right to be identiﬁed Section 97 is amended by repealing subsection (3) and substi­ tuting the following subsection: “(3) The right is not infringed by an act that, under any of the fol­ 10 “(c) “(b) “(d) lowing provisions of this Act, would not infringe copyright in 5 the work: “(a) section 41 (which relates to incidental copying of a work): section 42 (which relates to criticism, review, and news reporting): section 43A43A43A (which relates to transient reproduction of section section work): section 49 (which relates to things done for the purposes of an examination): section 59 (which relates to parliamentary and judicial 15 proceedings): section 60 (which relates to Royal commissions and statutory inquiries): section 67 (which relates to acts permitted on assump­ tions as to expiry of copyright or death of author in re­ 20 lation to anonymous or pseudonymous works): section 81A81A81A (which relates to copying sound record­ “(h) section section ings for private and domestic use).” “(g) “(e) “(f) Section 97(8) is amended by repealing paragraph (b) and sub­ stituting the following paragraph: “(b) a part of a ﬁlm, if that part— “(i) appears incidentally in another ﬁlm, or is in­ cluded in a communication work; and is not a substantial part of the ﬁlm.” “(ii) 25 30 Content of right to object to derogatory treatment Section 99(1)(a) is amended by omitting “broadcasts, or in­ cludes in a cable programme” and substituting “or communi­ cates to the public”.
Section 99(2)(a) is amended by omitting “broadcasts or in­ cludes in a cable programme” and substituting “communicates 35 to the public”.

Section 99(4) is amended by repealing paragraph (a) and sub­ stituting the following paragraph: (2) 58 (1) (2) (3) 38 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 60 “(a) shows in public, or communicates to the public, a derogatory treatment of the ﬁlm; or”.
(4) Section 99(4)(c) is amended by repealing subparagraph (i) and substituting the following subparagraph: “(i) plays in public or communicates to the public; 5 or”.
59 (1) Exceptions to right to object to derogatory treatment of ﬁlms Section 101(3) is amended by repealing paragraphs (a) and (b) and substituting the following paragraph: “(a) in relation to the communication of a ﬁlm,— “(i) complying with a duty imposed under section 4 of the Broadcasting Act 1989; or 10 “(ii) maintaining standards that are consistent with the observance of good taste and decency and the 15 maintenance of law and order; or “(iii) avoiding the commission of an offence; or “(iv) complying with a duty imposed by or under any enactment—”.
(2) Section 101 is amended by repealing subsection (6) and sub­ 20 stituting the following subsection: “(6) The right is not infringed, in relation to the communication of a ﬁlm to the public, if the person (A) communicating the ﬁlm— “(a) makes a deletion or any deletions from the ﬁlm that is or are reasonably required to enable A to— “(i) follow guidelines as to the programmes that may be shown in particular time periods; or “(ii) ﬁt the ﬁlm into the time scheduled to show it; or communicates the ﬁlm in separate parts because of its length; or uses a clip of a ﬁlm in an advertisement for the showing of the ﬁlm.” 25 30 “(b) “(c) 60 False attribution of identity of author or director Section 102 is amended by repealing subsection (4) and sub­ stituting the following subsection: 35 “(4) A person (A) infringes a right under subsection (2) if— 39 Part 1 cl 61 Copyright (New Technologies and Performers’ Rights) Amendment Bill “(a) A performs a literary, dramatic, or musical work in pub­ lic, or shows a ﬁlm to the public, or communicates the work or ﬁlm to the public; and the work or ﬁlm is accompanied by a false attribution; and “(b) “(c) A knows or has reason to believe that the attribution is 5 false.” 61 False representation as to literary, dramatic, or musical work Section 103 is amended by repealing subsection (4) and sub­ 10 stituting the following subsection: “(4) A person (A) infringes the right conferred by subsection (2) if A performs in public, or communicates to the public, a literary, dramatic, or
 musical work, accompanied by a false represen­ tation, and A knows or has reason to believe that the represen­ 15 tation is false.” 62 (1) (2) 63 Right to privacy of certain photographs and ﬁlms Section 105(1) is amended by repealing paragraph (c) and sub­ stituting the following paragraph: “(c) not to have the work communicated to the public.” Section 105(3)(a) is amended by omitting “broadcast or cable programme”, and substituting “or communication work”.
New sections 112 to 112B substituted The principal Act is amended by repealing section 112 and substituting the following sections: “112 Warranty implied in certain licences “(1) This section applies to a licence that has been granted for— “(a) the performance or communication to the public of a copyright work that is a literary, dramatic, or musical work or a sound recording or ﬁlm; or the inclusion of a copyright work that is an artistic work in a performance or a communication work.
“(2) A warranty is implied in the licence that the person by whom “(b) 20 25 30 or on whose behalf the licence is granted is— 40 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 1 cl 63 “(a) “(b) the owner of the copyright in the work, sound recording, or ﬁlm that is the subject of the licence; or authorised to grant the licence by the copyright owner.
“112A Damages for falsely claiming copyright ownership or licence “(1) This section applies if— “(a) a person (A) falsely claims to be, or to have been granted a licence by or on behalf of, the owner of the copyright in a literary, dramatic, musical, or an artistic work or a sound recording or ﬁlm; and “(b) A has threatened or commenced proceedings for pre­ venting, or claiming damages in respect of, a perform­ ance or communication to the public of the work, sound recording, or ﬁlm (which in this section is called the event); and as a result of the threat or commencement of proceed­ ings, the event has not taken place.
“(c) “(2) A court may award damages to compensate any of the follow­ ing persons for any loss sustained because the event did not take place: “(a) in the case of a threat of proceedings, the person to whom A made the threat: in the case of the commencement of proceedings, a de­ fendant: any other person interested in the event.
“(b) “(c) “112B Provisions of sections 112 and 112A to have effect no matter what licence says sections 112112112 andandand 112A112A112A have effect no The provisions of sections sections matter what any licence may say, and extend to all licences whether granted before or after the commencement of this 30 Act.” 41 Part 2 cl 64 Copyright (New Technologies and Performers’ Rights) Amendment Bill 64 (1) (2) Part 2 Amendments to Parts 6 to 11 of Copyright Act 1994 Presumptions relevant to computer programs, sound recordings, and ﬁlms Section 128(5) is amended by omitting “public, broadcast, or included in a cable programme” and substituting “public or communicated to the public”.
Section 128(6) is amended by omitting “public, broadcast, or included in a cable programme” in each place where it appears 10 and substituting in each case “public or communicated to the public”.

5 64A Unjustiﬁed proceedings Section 130(1) is amended by inserting “or a contravention of ssseeeccctttiiiooonnn 222222666AAA” after “copyright”.
15 65 Criminal liability for making or dealing with infringing objects Section 131(4) is amended by omitting “broadcast or cable programme” and substituting “communication work”.
66 Works of more than one author “(2) Section 147 is amended by repealing subsection (2) and sub­ stituting the following subsection: In subsection (1), group of companies means a holding com­ pany and its subsidiaries as deﬁned in sections 5 and 6 of the Companies Act 1993.” 20 25 67 (1) Licensing schemes to which sections 149 to 155 apply Section 148(a) is amended by repealing subparagraph (iv) and substituting the following subparagraph: “(iv) relate to licences for copying the work or per­ forming, showing, or playing the work in public 30 or communicating the work to the public:”.
(2) Section 148(b) is amended by omitting “broadcasts, or cable programmes” and substituting “communication works”.

42 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 2 cl 70 (3) Section 148(d) is amended by repealing subparagraphs (iii) and (iv) and substituting the following subparagraph: “(iii) recording in the circumstances set out in sections 48(1) and 91(2);—”.
68 (1) (2) 69 Licences to which sections 157 to 160 apply Section 156(a) is amended by repealing subparagraph (iii) and substituting the following subparagraph: 5 “(iii) authorise the copying of the work or the perform­ ance, showing, or playing of the work in public or the communication of the work to the public:”.

10 Section 156(b) is amended by omitting “broadcast, or cable programme” and substituting “communication work”.
New section 163 substituted The principal Act is amended by repealing section 163 and substituting the following section: 15 “163 Licences for educational establishments in respect of works included in communication works “(1) This section applies to references or applications made under this Part in relation to licences for— “(a) the recording, for educational purposes, by or on behalf 20 of educational establishments, of communication works that include copyright works; or “(b) making copies of those recordings for educational pur­ poses.
“(2) When this section applies, the Tribunal must, in considering 25 what charges (if any) should be paid for a licence, have regard to the extent to which the owners of the copyright in the works included in the communication work have already received, or are entitled to receive, payment in respect of their inclusion.” 70 (1) (2) Licences to reﬂect conditions imposed by promoters of events Section 164(1) is amended by omitting “broadcast, or cable programme” and substituting “or communication work”.
Section 164(2)(b) is amended by omitting “broadcast, or cable programme” and substituting “or communication work”.

30 35 43 Part 2 cl 71 Copyright (New Technologies and Performers’ Rights) Amendment Bill 71 Licences to reﬂect payments in respect of underlying rights Section 165(2) is amended by— (a) omitting “broadcasts, or cable programmes” and substi­ tuting “or communication works”; and omitting “broadcast, or cable programme” and substi­ tuting “or communication work”.
(b) 5 72 Licences in respect of works included in retransmissions Section 166 is amended by repealing subsection (1) and sub­ stituting the following subsection: 10 “(1) This section applies to applications under this Part in relation to licences to include literary, dramatic, musical, or artistic works or sound recordings or ﬁlms in a communication work when one communication work (in this section referred to as the ﬁrst transmission) is, by reception and immediate retrans­ 15 mission, to be further communicated to the public (in this sec­ tion referred to as the further transmission).” Determination of equitable remuneration Section 168(1)(e) is amended by omitting “broadcast or cable programme” and substituting “communication work”.
20 Interpretation Paragraph (d) of the deﬁnition of commercial exploitation in section 169 is repealed and the following paragraph substi­ tuted: “(d) communicating recordings or copies of recordings to 25 the public”.

Paragraph (b) of the deﬁnition of recording in section 169 is amended by omitting “broadcast of, or a cable programme that includes,” and substituting “communication work that in­ cludes”.
30 Application Section 170(4)(a) is amended by omitting “broadcast or cable programme” and substituting “communication work”.
73 74 (1) (2) 75 44 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 2 cl 79 76 Consent required for recording or live transmission of performance Section 171(1) is amended by repealing paragraph (b) and sub­ stituting the following paragraph: “(b) communicates live to the public the whole or any sub­ 5 stantial part of a performance.” 77 New section 172 substituted Section 172 is repealed and the following section substituted: “172 Infringement by use of illicit recording made without performer’s consent A person (A) infringes a performer’s rights if— “(a) without the performer’s consent and by means of a recording, A shows in public, plays in public, or com­ municates to the public the whole or a substantial part of a performance; and the recording is illicit was made without the performer’s consent; and “(b) “(c) A knows or has reason to believe that the recording is illicit was made without the performer’s consent.” 10 15 78 Incidental copying inclusion of performance or recording Section 175 is amended by repealing subsection (1) and sub­ stituting the following subsection: 20 “(1) The rights conferred by this Part are not infringed by— “(a) “(b) “(c) the incidental copying inclusion of a performance or recording in a sound recording, ﬁlm, or communication 25 work; or the playing of a sound recording, the showing of a ﬁlm, or the making of a communication work, where the performance or sound recording has been incidentally copied included in that sound recording, ﬁlm, or com­ 30
 munication work; or the issue to the public of copies of a sound recording, ﬁlm, or communication work in which a performance or recording has been incidentally copied included.” 79 New section 175A inserted The following section is inserted after section 175: 35 45 Part 2 cl 80 Copyright (New Technologies and Performers’ Rights) Amendment Bill “175A Transient reproduction of recording of performance A reproduction of a recording of a performance of a work does not infringe the rights conferred by this Part in
 the recording if the reproduction— “(a) “(b) is transient or incidental; and is a necessary part of a technological process for the viewing of, or listening to, the recording by a member of the public to whom the recording is lawfully made available; and has no independent economic signiﬁcance.” “(c) Playing or showing sound recording, ﬁlm, broadcast, or cable programme at educational establishment The heading to section 178 is amended by omitting “broad­ cast, or cable programme” and substituting “or communi­ cation work”.
Section 178(1) is amended by omitting “broadcast, or cable programme” and substituting “or communication work”.

5 10 15 Recording of broadcasts and cable programmes by educational establishment The heading to section 179 is amended by omitting “broad­ 20 casts and cable programmes” and substituting “communi­ cation works”.

Section 179 is amended by omitting “broadcast or cable pro­ gramme” and substituting “communication work”.
Use of recordings of spoken works in certain cases Section 184 is amended by repealing subsection (1) and sub­ stituting the following subsection: It is not an infringement of the rights conferred by this Part to use a recording of a reading or recitation of a literary work (or to copy the recording and use the copy) if— it was made for the purpose of— “(a) reporting current events; or “(i) communicating all or part of the reading or recita­ “(ii) tion to the public; and 25 30 “(b) the conditions in subsection (2) are complied with.” 35 80 (1) (2) 81 (1) (2) 82 (1) “(1) 46 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 2 cl 84 (2) 83 Section 184(2)(a) is amended by omitting “broadcast or cable programme” and substituting “communication work”.
New section 187 substituted Section 187 is repealed and the following section substituted: “187 Incidental recording for purposes of communication work 5 “(1) A person who proposes to communicate a recording of a per­ formance to the public in circumstances not infringing rights under this Part does not require consent for the purposes of this Part to the making of the further recording if the conditions in subsection (2)(2)(2) are complied with.
subsection subsection subsection (1)(1)(1) are that the fur­ “(2) The conditions referred to in subsection subsection 10 ther recording— “(a) must only be used for communicating it to the public in circumstances not infringing rights under this Part; and “(b) must be destroyed within 6 months after ﬁrst being com­ 15 municated to the public, unless the Minister has author­ ised the preservation of the recording in the records of a government department or in the national archives be­ cause of its documentary character or exceptional im­ portance.
20 “(3) A recording made in accordance with this section is treated as an illicit recording— “(a) for the purposes of any use in breach of the condition in (2)(a); and subsection (2)(a) subsection (2)(a) subsection subsec­­­ 25 for all purposes after either of the conditions in subsec subsec tiontiontion (2)(2)(2) is broken.” “(b) 84 New sections 188 to 188B substituted Section 188 is repealed and the following sections substituted: “188 Free public playing or showing of communication work “(1) The free public playing or showing of a communication work 30 (other than a communication work to which section section 188A188A188A section applies or a communication work for which a subscription fee must be paid in order to receive it) does not infringe a right under this Part in relation to a performance or recording in­ cluded in— “(a) the communication work; or 35 47 Part 2 cl 84 Copyright (New Technologies and Performers’ Rights) Amendment Bill “(b) any sound recording or ﬁlm that is played or shown in public by reception of the communication work.
“(2) For the purposes of this section, the public playing or showing of a communication work is not free if— “(a) the audience has paid for admission to— “(i) the place where the communication work is shown or played (which in this section is called the venue); or any place of which the venue is a part; or “(b) goods or services are supplied at the venue or a place of 10 “(ii) 5 which it forms part at prices that— “(i) are substantially attributable to the facilities af­ forded for hearing or seeing the communication work; or exceed those usually charged there and that are 15 partly attributable to those facilities; or “(ii) “(c) the venue is a hotel, motel, camping ground, or any other place that admits persons for a fee for the pur­ poses of temporary accommodation, and the audience is made up of persons residing at that hotel, motel, camp­ 20 ing ground, or other place.
(2)(a), the following persons “(3) For the purposes of subsection subsection (2)(a) (2)(a) subsection must not be treated as having paid for admission to the venue: a person admitted as a resident or an inmate of a place “(a) (other than a hotel, motel, camping ground, or any other 25 place to which subsection (2)(c) applies): subsection (2)(c) (2)(c) subsection a person admitted as a member of a club or society where the payment is only for membership of the club or society and the provision of facilities for hearing or seeing communication works is only incidental to the 30 main purposes of the club or society.
“(b) “188A Free public playing or showing of communication work that is simultaneous with reception “(1) This section applies to the playing or showing of a communi­ cation work that— “(a) is made for reception in the area in which it is played or shown; and 35 48 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 2 cl 84 “(b) “(b) “(c) is not a satellite transmission or an encrypted transmis­ sion; and is not a communication work for which a subscription fee must be paid in order to receive it; and is played or shown simultaneously upon reception of the 5 communication work.
“(2) The free public playing or showing of a communication work to which this section applies does not infringe a right under this Part in relation to a performance or recording included in— “(a) “(b) the communication work; or any sound recording or ﬁlm that is played or shown in public by reception of the communication work.
“(3) For the purposes of this section, the public playing or showing 10 of a communication work is not free if— “(a) the audience has paid for admission to the place where 15 the communication work is played or shown (which in this section is called the venue), including any place of which the venue is a part; or “(b) goods or services are supplied at the venue or a place of which it forms part at prices that— “(i) are substantially attributable to the facilities af­ forded for hearing or seeing the communication work; or exceed those usually charged there and that are partly attributable to those facilities.
“(ii) 20 25 (3)(a), the following persons “(4) For the purposes of subsection subsection (3)(a) (3)(a) subsection must not be treated as having paid for admission to the venue: a person admitted as a resident or an inmate of a place “(a) (including a person residing in a hotel, motel, camping ground, or any other place that admits persons for a fee) 30 for the purpose of temporary accommodation: a person admitted as a member of a club or society where the payment is only for membership of the club or society and the provision of facilities for hearing or seeing communication works is only incidental to the 35 main purposes of the club or society.
“(b) 49 Part 2 cl 85 Copyright (New Technologies and Performers’ Rights) Amendment Bill “188B Assessment of damages for infringement of rights under this Part in relation to performance or recording Where the making of a communication work is an infringe­ ment of rights under this Part in relation to a performance or recording, the fact that the work was heard or seen in public by 5 the reception of the communication work must be taken into account in assessing the damages for the infringement.” 85 86 Section 189 repealed Section 189 is repealed.
New section 190 substituted Section 190 is repealed and the following section substituted: 10 “190 Provision of subtitled copies of communication work “(1) A prescribed body that makes a recording of a communica­ tion work for the purpose of providing people who are deaf or hard of hearing or physically or mentally disabled in any 15 other way with copies that are subtitled or otherwise modiﬁed for their special needs, does not infringe any right under this Part in relation to a performance or recording included in that communication work.
subsection 20 “(2) A body must not be prescribed for the purposes of subsection subsection (1)(1)(1) if it is established or conducted for proﬁt.” 87 New section 191 substituted Section 191 is repealed and the following section substituted: “191 Recording of communication work for archival purposes “(1) Any person (A) who records, or makes a copy of a recording 25 of, a communication work does not infringe any right under this Part in relation to a performance or recording included in the communication work if— “(a) the communication work falls within a prescribed class; and “(b) A makes the recording or the copy for the purpose of it being placed in an archive maintained by a prescribed body.
“(2) A body must not be prescribed for the purposes of subsection subsection subsection (1)(1)(1) if it is established or conducted for proﬁt.” 50 30 35 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 2 cl 89 88 89 Criminal liability for making, dealing with, using, or copying illicit recordings Section 198(2) is amended by repealing paragraph (b) and sub­ stituting the following paragraph: “(b) communicated to the public.” New heading and new sections 226 to 226J substituted Section 226 and the heading immediately above section 226 are repealed and the following heading and sections substi­ tuted: “Technological protection measures 5 10 “226 Deﬁnitions of TPM terms treatment, mechanism, device, or system that is 15 In sections sections 226A226A226A tototo 226E226E226E, unless the context otherwise re­ sections quires,— “TPM or technological protection measure includes any process, designed in the normal course of its operation to prevent or inhibit the unauthorised exercise of any of the rights conferred by this Act “TPM spoiler means a person who contravenes ssseeeccctttiiiooonnn 222222666AAA “TPM spoiling device means a device or means that— “(a) is primarily designed, produced, or adapted for the pur­ pose of enabling or facilitating the circumvention of a technological protection measure; and 20 “(b) has no signiﬁcant application except for its use in cir­ 25 cumventing a technological protection measure “TPM or technological protection measure— “(a) means any process, treatment,
 mechanism, device, or system that in the normal course of its operation pre­ vents or inhibits the infringement of copyright in a TPM 30 work; but for the avoidance of doubt, does not include a process, treatment, mechanism, device, or system to the extent that, in the normal course of operation, it controls any access to a work for non­infringing purposes (for ex­ 35 ample, it does not include a process, treatment, mechan­ ism, device, or system to the extent that it controls geo­ “(b) 51 Part 2 cl 89 Copyright (New Technologies and Performers’ Rights) Amendment Bill graphic market segmentation by preventing the play­ back in New Zealand of a non­infringing copy of a work) “TPM circumvention device means a device or means that— “(a) is primarily designed, produced, or adapted for the pur­ 5 pose of enabling or facilitating the circumvention of a technological protection measure; and “(b) has no signiﬁcant application except for its use in cir­ cumventing a technological protection measure “TPM work means a copyright work that is protected by a 10 technological protection measure.
“226A Prohibited conduct in relation to technological protection measure “(1) A person (A) must not make, import, sell, distribute, let for hire, offer or expose for sale or hire, or advertise for sale or 15 hire, a TPM spoiling circumvention device that applies to a technological protection measure if A knows or has reason to believe that it will, or is likely to, be used to infringe copyright in a TPM work.
“(2) A person (A) must not provide a service, including the publi­ 20 cation of information, to another person (B) if— “(a) the service or the information is intended A intends the service to enable or assist persons B to circumvent a technological protection measure; and “(b) A knows or has reason to believe that the service or 25 the information will, or is likely to, be used to infringe copyright in a TPM work that is protected by a techno­ logical protection measure.
“(3) A person (A) must not publish information enabling or assist­ ing another person to circumvent a technological protection 30 measure if A intends that the information will be used to in­ fringe copyright in a TPM work.

“226B Rights of issuer of TPM work “(1) This section applies if a TPM work is issued to the public by, or under licence from, the copyright owner.
35 52 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 2 cl 89 “(2) The issuer of the TPM work has the same rights against a TPM spoiler person who contravenes ssseeeccctttiiiooonnn 222222666AAA as a copyright owner has in respect of an infringement of copyright.
“(3) The issuer of the TPM work has the same rights under section 122 (order for delivery up in civil proceedings) or section 132 5 (order for delivery up in criminal proceedings) in relation to a TPM spoiling circumvention device as a copyright owner has in relation to an infringing copy.

“(4) Sections 126 to 129 (which relate to certain presumptions) ap­ ply in relation to proceedings under this section.
10 “(5) Section 134 (order as to disposal of infringing copy or other object) applies, with all necessary modiﬁcations, in relation to the disposal of anything that is delivered up under subsection subsection subsection (3)(3)(3).
“226C Offence of making, etc, TPM spoiling device 15 contravening section 226A “(1) Every person commits an offence who, in the course of busi­ ness,— “(a) either— “(i) makes for sale or hire, imports, sells, lets for hire, 20 offers or exposes for sale or hire, or advertises for sale or hire, a TPM spoiling device; or “(ii) publishes information intended to enable or assist persons to circumvent a technological prevention measure; and 25 “(b) does so, knowing that the TPM spoiling device or the in­ formation will, or is likely to, be used to infringe copy­ right in a work that is protected by the technological protection measure in question.
“(1) A person (A) commits an offence who, in the course of busi­ 30 ness, makes, imports, sells, distributes, lets for hire, offers or exposes for sale or hire, or advertises for sale or hire, a TPM circumvention device that applies to a technological protec­ tion measure if A knows that it will, or is likely to, be used to infringe copyright in a TPM work.
35 “(1A) A person (A) commits an offence who, in the course of busi­ ness, provides a service to another person (B) if— 53 Part 2 cl 89 Copyright (New Technologies and Performers’ Rights) Amendment Bill “(a) A intends the service to enable or assist B to circumvent a technological protection measure; and “(b) A knows that the service will, or is likely to, be used to infringe copyright in a TPM work.
“(1B) A person (A) commits an offence who, in the course of busi­ 5 ness, publishes information enabling or assisting another per­ son to circumvent a technological protection measure if A in­ tends that the information will be used to infringe copyright in a TPM work.

“(2) A person who commits an offence under sssuuubbbssseeeccctttiiiooonnn (((111))) this 10 section is liable on conviction on indictment to a ﬁne not ex­ ceeding $150,000 or a term of imprisonment not exceeding 5 years or both.
exercise a permitted act under Part 3; or correct an error in a computer program; or effect interoperability of software; or “226D When rights of issuer of TPM work do not apply “(1) The rights that the issuer of a TPM work has under ssseeeccctttiiiooonnn 15 222222666BBB do not prevent or restrict the exercise of a permitted act.
“(2) The rights that the issuer of a TPM work has under section section section 226B226B226B do not prevent or restrict the making, importation, sale, or letting for hire of a TPM spoiling circumvention device to enable a qualiﬁed person to— “(a) “(b) “(c) “(d) undertake encryption research.
section 226E226E226E, qualiﬁed person 25 In this section and in section section means— “(a) “(b) “(c) “(d) the librarian of a prescribed library; or a prescribed the archivist of an archive; or an educational establishment; or any other person speciﬁed by the Governor­General by 30 Order in Council on the recommendation of the Minis­ ter.
“(3) 20 “(4) A qualiﬁed person must not be supplied with a TPM spoiling circumvention device on behalf of a user unless the qualiﬁed person has ﬁrst made a declaration to the supplier in the pre­ 35 scribed form.
In this section,— “(5) 54 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 2 cl 89 “archive has the same meaning as in section 50(1) “archivist includes a person acting on behalf of the archivist “encryption technology means the scrambling and descram­ bling of information using mathematical formulae or algo­ rithms “librarian includes a person acting on behalf of the librarian “prescribed library has the same meaning as in section 50(1).
In this section and in ssseeeccctttiiiooonnn 222222666EEE, encryption research means identifying and analysing ﬂaws and vulnerabilities of encryption technology.
“(6) “226E User’s options if prevented from exercising permitted act by TPM The user of a TPM work who wishes to exercise a permitted act allowed under this Act but cannot practically do so because of a TPM may— “(a) apply to the copyright owner or the exclusive licensee for assistance enabling the user to exercise the permitted act: engage a qualiﬁed person (see ssseeeccctttiiiooonnn 222222666DDD(((333)))) to ex­ ercise the permitted act on the user’s behalf using a TPM 20 spoiling device, but only if the copyright owner or the exclusive licensee has refused the user’s request for as­ sistance or failed to respond to it within a reasonable time.
“(b) 5 10 15 “226E User’s options if prevented from exercising permitted 25 act by TPM “(1) Nothing in this Act prevents any person from using a TPM circumvention device to exercise a permitted act under Part 3 or to undertake encryption research.
“(2) The user of a TPM work who wishes to exercise a permitted 30 act under Part 3 but cannot practically do so because of a TPM may do either or both of the following: “(a) apply to the copyright owner or the exclusive licensee for assistance enabling the user to exercise the permitted act: 35 55 Part 2 cl 89 Copyright (New Technologies and Performers’ Rights) Amendment Bill “(b) engage a qualiﬁed person (see ssseeeccctttiiiooonnn 222222666DDD(((333)))) to ex­ ercise the permitted act on the user’s behalf using a TPM circumvention device.
“(3) For the purposes of this section, a person (A) undertakes en­ 5 cryption research if A— is either— “(a) “(i) engaged in a course of study at an educational es­ tablishment in the ﬁeld of encryption technology; or employed, trained, or experienced in the ﬁeld of 10 encryption technology; and “(ii) “(b) has either— “(i) obtained permission from the copyright owner or exclusive licensee of the copyright to the use of a TPM circumvention device for the purpose of 15 the research; or “(ii) has taken, or will take, all reasonable steps to obtain that permission.
“(4) A qualiﬁed person who exercises a permitted act on behalf of the user of a TPM work must not charge the user more than a 20 sum consisting of the total of the cost of the provision of the service and a reasonable contribution to the qualiﬁed person’s general expenses.
“Copyright management information 25 30 “226F Meaning of copyright management information In sections 226J CMI or copyright man­ 226H, andandand 226J226J sections 226G226G226G,,, 226H, 226H, sections agement information means information attached to, or em­ bodied in, a copy of a work that— “(a) identiﬁes the work, and its author or copyright owner; or identiﬁes or indicates some or all of the terms and con­ ditions for using the work, or indicates that the use of the work is subject to terms and conditions.
“(b) 56 Copyright (New Technologies and Performers’ Rights) Amendment Bill Part 2 cl 89 “226G Interference with CMI prohibited “(1) A person (A) must not remove or modify any copyright man­ agement information attached to, or embodied in, a copy of a work.
subsection (1)(1)(1) does not apply if— “(2) However, subsection subsection 5 “(a) A has the authority of the copyright owner or the exclu­ sive licensee to remove or modify the copyright man­ agement information; or “(b) A does not know, and has no reason to believe, that the removal or modiﬁcation will induce, enable, facilitate, 10 or conceal an infringement of the copyright in the work.
“226H Commercial dealing in work subject to CMI interference “(1) A person (A) must not, in the course of business, make, import, sell, let for hire, offer or expose for sale or hire, or advertise for sale or hire, a copy of a work if any copyright management 15 information attached to, or embodied in, the copy has been removed or modiﬁed without the authority of the copyright owner or the licensee.
subsection (1)(1)(1) does not apply if— “(2) However, subsection subsection “(a) A has the authority of the copyright owner or the exclu­ 20 sive licensee to remove or modify the copyright man­ agement information; or “(b) A does not know, and has no reason to believe, that the removal or modiﬁcation will induce, enable, facilitate, or conceal an infringement of the copyright in the work.
25 “226I Contravention of section 226G or section 226H A copyright owner or licensee of a work has the same rights in relation to a contravention of section section 226G226G226G ororor ssseeeccctttiiiooonnn section 226H226H226H as a copyright owner has in respect of an infringement of copyright.
30 “226J Offence of dealing in work subject to CMI interference section 226H226H226H commits an of­ “(1) A person (A) who contravenes section section fence if— “(a) A knows that the copyright management information has been removed or modiﬁed without the authority of 35 the copyright owner or licensee; and 57 Part 2 cl 90 Copyright (New Technologies and Performers’ Rights) Amendment Bill “(b) A knows that dealing in the work will induce, enable, facilitate, or conceal an infringement of the copyright in the work.
subsection (1)(1)(1) is “(2) A person who commits an offence under subsection subsection liable on conviction on indictment to a ﬁne not exceeding 5 $150,000 or a term of imprisonment not exceeding 5 years or both.” Offence of fraudulently receiving programmes Section 227(1) is amended by omitting “broadcasting service or cable programme service” and substituting “communica­ 10 tion work”.
Rights and remedies in respect of apparatus, etc, for unauthorised reception of transmissions Section 228(1)(b) is amended by omitting “broadcasting ser­ vice or cable programme service” and substituting “commu­ 15 nication work”.

Supplementary provisions as to fraudulent reception Section 229(2) is amended by omitting “broadcasting services or cable programme services” and substituting “communica­ tion works”.
Section 229(3) is amended by omitting “broadcasting service or cable programme service” and substituting “communica­ tion work”.

20 Application to Convention countries Section 230(1) is amended by repealing paragraph (d) and sub­ 25 stituting the following paragraph: “(d) apply in relation to communication works communi­ cated from any Convention country as they apply in relation to communication works communicated from New Zealand,—”.
30 Application of Act (other than Part 9) to other entities Section 232(2) is amended by repealing paragraph (d) and sub­ stituting the following paragraph: 90 91 92 (1) (2) 93 94 58 Copyright (New Technologies and Performers’ Rights) Amendment Bill “(d) it applies to communication works communicated from any Convention country as it applies to communication works communicated from New Zealand.” 95 (1) (2) Regulations Section 234(e) is amended by omitting “broadcasts or cable 5 programmes” and substituting “communication works”.
Section 234 is amended by inserting the following paragraph after paragraph (e): “(ea) prescribing the form of a notice of infringement for the purposes of ssseeeccctttiiiooonnn 999222CCC(((222)))(((bbbaaa)))(((iii))):”.

10 4 December 2006 12 December 2006 Introduction (Bill 102–1) First reading and referral to Commerce Committee Legislative history 12 Published under the authority of the House of Representatives—2006 Wellington, New Zealand: 59