Finlayson Christopher: Copyright (New Technologies and Performers’ Rights) Amendment Bill — Second Reading 
Finlayson Christopher: Copyright (New Technologies and Performers’ Rights) Amendment Bill — Second Reading 
[Volume:641;Page:11551] 
CHRISTOPHER FINLAYSON (National) 
: 
 National will support the second reading of the Copyright (New Technologies and Performers’ Rights) Amendment Bill although it is not entirely happy with the way in which the legislation has evolved. I was on the Commerce Committee on a number of occasions to work on this legislation. Unfortunately I could not attend all the meetings of the committee when this legislation was being considered because I was needed in the Justice and Electoral Committee to oppose the introduction of that dreadful creature the Sentencing Council. Perhaps if I had been able to be on the Commerce Committee the whole time there could have been some more effective changes to this legislation. 
But putting that to one side on listening to the Minister of Custom’s speech tonight I have to observe that if one were listening to the debate one could possibly conclude that the Government was actually interested in intellectual property law reform. The reality of the matter is that it is not. This is piecemeal law reform and it is piecemeal law reform of absolutely critical legislation. That approach to reform is not good enough. 
 The introduction to the report of the Commerce Committee states that the bill amends the Copyright Act 1994 to address the emergence of technology such as the Internet. But how long is it since the Internet was developed? Apparently so Al Gore would say it was developed by Al Gore; indeed he was making that extraordinary assertion when he was Vice-President of the United States and that was about 7 years ago. So we have had the Internet for almost 7 years and in 2007 in New Zealand we have the introduction of the Copyright (New Technologies and Performers’ Rights) Amendment Bill. Why has it taken so long? Why cannot this country move more quickly to adapt its intellectual property laws to the realities of the times? 
Indeed I indicated to the select committee that there should be mandatory post-legislative review of this copyright legislation and I referred members to section 202 of the Evidence Act which introduced a mandatory post-legislative requirement into that very fine piece of legislation. Post-legislative review is not always necessary but it is necessary for intellectual property legislation and particularly for copyright legislation where technology is changing so very rapidly. We cannot afford to allow the Copyright Act to get out of date. The Minister referred to what I have to say as very much a second-best proposal. She said that the Ministry of Economic Development has said there will be a review in 5 years’ time to ensure that copyright legislation keeps pace with technological advances. Well it is not keeping pace with technological advances. Already it is said that this legislation deals with in some respects out-of-date technology so for the foreseeable future we are going to continue to have to put up with piecemeal reform of the Act rather than a comprehensive back to basics review of copyright. 
It is interesting to observe as the select committee report does that already there are issues on the table that have not been addressed. I refer honourable members to page 10 of the select committee’s commentary. The first one concerns off-air recordings of television programmes to educational establishments. That could not be dealt with but the ministry is intending to report to the Associate Minister of Commerce on that issue in September 2007. 
A very important issue concerning directors’ rights arose because a submitter asserted that film directors should be defined as authors under the principal Act and therefore be treated as the copyright owners of films. We are told that the Ministry of Economic Development is going to start looking at this issue in early 2008. That is not good enough. 
The third issue and it was a very important issue that arose time and time again before the select committee was orphaned works. At least the Ministry of Economic Development is recorded as having given the committee an undertaking—and I record the undertaking given by the ministry in this House tonight—that it intends to conduct a review of this issue and report to the Minister later this year. Why it could not have dealt with it while this legislation was before the select committee I simply do not know. 
The fourth issue that requires further review concerns access to works for print-disabled persons and again that is another issue that the ministry intends to report on to the Associate Minister by September 2007. 
So instead of taking the opportunity to have a comprehensive look at this legislation what we have is more piecemeal bitsy reform of a critically important piece of legislation. When this House comes to the Committee stage I intend to address the particular changes proposed by the select committee in some detail and the Committee of the whole House will need to very carefully analyse what is proposed because it will be necessary to ensure that the select committee has in fact got these issues right. In the time available to me I will briefly give an overview of at least some of the proposed changes. 
The first set of proposed changes I wish to refer to concern amendments to Part 3 of the 1994 Act. Part 3 deals with certain acts that are permitted in relation to copyright works. For example criticism review or news reporting may be permitted in terms of Part 3 but the particular ones where there have been changes relate to educational purposes and also the holding of works by libraries and archives. Certain exemptions are granted—for example for educational establishments and librarians—and it will be for the Committee to decide whether those changes as outlined by the Minister are in fact acceptable. 
A second major set of amendments concern Internet service provider liability and this issue was summarised well by the Minister. These service providers play an important role in addressing online piracy. As is well known Internet service providers or ISPs are the gatekeepers of the Internet. They have the ability to control communications over their networks and over the years in jurisdictions such as the United States Australia and the United Kingdom principles and procedures have been developed to set out the roles and responsibilities of Internet service providers. The legislation that we are dealing with tonight also addresses those issues. 
 At the Committee stage members may want to look at the proposed deletion of section 92A in clause 53 and whether that is an appropriate approach to be taken for the reasons that are set out by the select committee in its report. Members will also want to pay very close attention to the proposed new section 92CB which creates an offence for right-holders who provide notices that are intentionally or recklessly false or misleading. Indeed in the case of an individual penalties up to $50000 may have to be paid or in the case of a body corporate a fine not exceeding $100000. Members will wish to consider whether the Internet service provider provisions accurately reflect the law of other jurisdictions and whether what is proposed in the proposed new section 92CB is fair and reasonable. 
The next issue concerns technological protection measures and the Minister has accurately summarised the work of the select committee there. There have been some changes but I do not have time to deal with them now and we will have to deal with them in the Committee stage. One of the issues will be whether the clauses as expressed in our legislation accurately reflect the practice in other jurisdictions. That will be an important question for the Committee of the whole House to consider. 
Finally there is the issue that Dr Worth touched on—the proposed repeal of section 88. This was something that concerned the majority of the committee so we reinserted section 88 and we made some consequential amendments that are set out in clause 49. 
As I say these are major issues for consideration by the Committee of the whole House. This is a very important bill and I for one am particularly disappointed at the sloppy and piecemeal approach to law reform of this critical intellectual property statute an approach which is perhaps typical of a Government that has lost interest in major issues.