Tizard Judith: Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill — Second Reading Instruction to CommitteeCWH In Committee Speaker Recalled In Committee Third Reading 
Tizard Judith: Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill — Second Reading Instruction to CommitteeCWH In Committee Speaker Recalled In Committee Third Reading 
[Volume:612;Page:9407] 
Hon JUDITH TIZARD (Minister of Consumer Affairs) 
: 
 I move  
That the Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill be now read a third time 
. This bill amends the Copyright Act in five areas. First it implements a ban on the parallel importing of motion picture films for 9 months after their first release. The Government did indeed state in the Speech from the Throne in 1999 that we would look at imposing a ban on the parallel importation of films CDs books and software for a period of up to 2 years. However after extensive consultation—in fact two rounds of consultation—with users producers and distributors of copyright goods this bill is the result. We have also put a great deal of support into the New Zealand creative industries concerned and I think we are seeing the results of that. 
The aim of the proposed bans in the Speech from the Throne was to ensure investment in New Zealand’s creative industries and a decent income for people who put their lives energies and creative talents into films CDs books and software. The consultation showed that banning parallel importing would not necessarily affect the investment in all those areas. However it was clear that there were problems in the area of films and this legislation addresses that area. It also addresses the major issue of piracy and covers many copyright goods and other creative industry goods. We have introduced these targeted measures because they are a good idea. However because we do have a commitment to ensure that New Zealanders have access to the widest range of goods at the best price within the rights of copyright holders and licensees we have made a limited provision that will remain in place for 5 years during which time we will review it. 
This amendment is also partly about ensuring the continued viability of picture theatres and the services they provide to communities particularly in rural and provincial areas. A comment was made in the Committee stage that because picture theatres and their owners are doing very well this ban is not necessary. However in the Government’s review of this issue significant concern was raised by many people about the viability of picture theatres in rural and small communities. We recognise that this environment is a changing one. That is why we have put into the legislation a provision that after 5 years the ban will lapse unless we decide to keep it going. 
I also make a point relating to rental rights—again another point that was raised during the Committee stage. Concern was expressed that people on lower incomes may not be able to rent videos and DVDs within days of a film’s theatre release. However videos and DVDs of  
The Lord of the Rings 
 a New Zealand - produced product were in video stores in New Zealand within days of the American premiere. They were pirated copies. It is absolutely unacceptable that people who have put their life’s work into those areas should have their income undercut in that way. It was never intended under the Copyright Act that films would be available for rental within days of their theatre release. In fact the High Court of New Zealand confirmed and now this bill confirms that rental rights on films software and sound recordings do apply to parallel-imported goods. It has never been the intention to alter the rights of copyright owners in respect of the rental of those types of goods. The bill merely confirms existing rental rights and clarifies that right. We should also point out that the reality is that the cost of CDs and movie tickets in New Zealand is very low internationally. I believe that New Zealanders are getting very good value for money. 
Coming to the piracy issue this bill reverses the onus of proof. It makes changes to the onus of proof in civil proceedings relating to the importation of infringing films sound recordings and computer programs. The onus will be on the defendant to rebut the presumption that the imported works are an infringing copy. Some copyright owners have sought more extensive changes to the onus of proof to cover circumstances other than the act of importation. I want to keep that under review. However we believe that it is appropriate to limit the amendment now to importation. 
Changing the onus of proof involves a change to a fundamental legal principle and requires a measured approach. This bill focuses on importation as importers rather than copyright owners are more likely to have access to information that demonstrates the goods’ authenticity. We give warning that where people are importing copyright goods they will need to be able to demonstrate that those goods are not pirated. Reputable importers would keep such records as a matter of good business practice. In the Committee stage there were suggestions that that was a major problem but we do reiterate that the provision applies only to importers. It applies to films sound recordings and software. It is not onerous as importers will have to have that necessary information in order to defend their right to import. I also note that if the owners of copyright are also business people they have a legitimate right to be able to enforce their copyright in goods that they have invested in. 
I also point out to the ACT speaker that the bill does not impose any new responsibilities on the New Zealand Customs Service. The idea that customs officers would sit and watch every video or listen to every CD is just ludicrous. It is a matter of being able to demonstrate that those goods are not pirated. That is a moderate and reasonable test. 
The bill introduces an objective knowledge requirement in relation to importation cases. Under the current Act the defendant must not know or have reason to believe that the work is an infringing copy. The new test will be that the defendant knows or has reason to know that the work is an infringing copy. That change applies only to films sound recordings and computer programs. The current test continues to apply to all other copyright works. Those changes in the onus of proof and knowledge requirement apply to products that are particularly susceptible to piracy. The changes will assist copyright owners to take effective action against piracy which is destroying the incomes of many New Zealand creative producers and the people they license to sell those goods. 
The bill also clarifies the scope of the rental right granted under section 9 of the Copyright Act. I have talked about the fact that it confirms the High Court’s interpretation of section 9 of the Act in the case of  
Video Ezy International (NZ) Ltd 
 v  
Roadshow Entertainment (NZ) Ltd 
. It also makes consequential amendments to the Trade Marks Act 2002 so the trademarks and copyright legislation are consistent on the issue of parallel importing. 
In conclusion I thank the members of the Commerce Committee and the officials particularly the officials from the Ministry of Economic Development for their work on this bill. These changes form part of the Government’s overall commitment to encourage and facilitate the growth of New Zealand’s creative industries and New Zealand’s opportunities to get employment and income from those industries. They will also ensure that our intellectual property regime is robust and balanced. I commend this bill to the House.