Worth Richard: Copyright (New Technologies) Amendment Bill — In Committee 
Worth Richard: Copyright (New Technologies) Amendment Bill — In Committee 
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Dr RICHARD WORTH (National) 
: 
 The Copyright (New Technologies) Amendment Bill which National supports is in two parts. The first part has a number of amendments to the first part of the Copyright Act and Part 2 is concerned with amendments to Parts 6 to 11. I want to spend the short time I have in talking about technological protection measures or “TPMs” as they are called in the industry. 
Before I do that though I just make the comment that it is scarcely satisfactory that a Supplementary Order Paper that touches this and a number of other issues has been delivered to us to see just today. It is not easy to pick up complex legislative change and to be satisfied that what has been proposed by the draftsmen is in fact truly appropriate in the particular context of copyright law. I say that because this is not perfect legislation. I think we would all acknowledge that and that is why I welcomed those in the Chamber who spoke about something akin to the provisions included in the Evidence Act that would require the Government to carry out a review within a specific time frame to see this legislation improved. This is piecemeal legislation. It is certainly better but it is not as good as it might be. 
If I talk about technological protection measures the starting point is clearly clause 89. There a number of new sections—sections 226 to 226J—are substituted. Perhaps I should start by talking about technological protection measures in a more general way. They are a means to combat the ease of unauthorised reproduction and distribution that digital technology provides. Examples of technological protection measures include the content scrambling system used by DVD manufacturers to control the types of devices and software that can access a DVD’s content and the digital rights management systems used in software to control the copying and distribution of content files. If we look at what the law is we see that the Act allows copyright owners to take action against people who supply or manufacture devices means or information specifically designed to circumvent technological protection measures. This applies only to technological protection measures that prevent copyrighted material from being copied. 
The bill before us tonight will extend this right by allowing copyright owners to take action in respect of devices means or information where circumvention could enable infringement of all exclusive rights not just the right of copying. An example of that is that the bill will include infringement of the communication right that extends to webcasting. The act of circumventing the technological protection measure will not itself be prohibited and the offence provision introduced in the bill for commercial dealing in circumvention devices means and information is intended as an additional deterrent for such activity. There are also new provisions to enable the actual exercise of permitted acts where technological protection measures have been applied. 
It is of course a reality that in the online world protected works can be copied perfectly instantaneously and in multiple copies. They are then disseminated around the world with the click of a key so it is critical for copyright owners to be able to use technological protection measures to implement the terms and conditions of use that consumers have paid for and to protect their works against such easy and unauthorised copying. The World Intellectual Property Organization treaties therefore contain a provision requiring that technological protection measures be given effective legal protection against circumvention and it is right to say that a number of groups are concerned that the way in which the bill has been reported back from the select committee—and I will come to the impact of the Supplementary Order Papers in a moment—will mean that New Zealand will diverge from what other countries have been doing in this area. I would say that that is most undesirable. Those groups go so far as to say that if the bill is enacted as reported back by the select committee it will not provide any meaningful protections for technological protection measures or any legal certainty regarding enforcement. 
My take on what the particular concerns are are really these. The concerned groups say first of all that the definition of a technological protection measure is poor. The critical thing of course is to protect access control. For example if a person can gain access from a subscription one has to be able to deny access if the person is not paying the subscription. They are also concerned about the definition of prohibited circumvention devices and I think a minor change is needed to make the current formulation more acceptable. Then there is the very vexed and tricky question of the knowledge element for prohibited conduct. In the bill as reported back by the select committee liability for trafficking in circumvention devices—which as the legislation makes clear in the definition provisions get around technological protection measures—is contingent on establishing knowledge and intention that the device will be used to infringe property rights. Those may be very difficult elements to prove. 
Then there is the issue of exceptions from prohibitions which is dealt with in new section 226D in clause 89. Those interested groups which I think are genuine are concerned that the regime is too permissive and would undermine the legal protection itself. So we had just as one example a submitter saying that the bill as amended would be inconsistent with the requirements of the World Intellectual Property Organization treaties and would make our law different from Australia’s. I think there is a concern that the industry does not want a black market in these devices and there is a case for a controlled approach like Australia’s. 
I will turn briefly to the Supplementary Order Paper itself which I have criticised because it came so late in the day. It cannot be good practice in a parliamentary democracy that we have seen in the course of an afternoon a number of amendments to this legislation. They are not textual amendments; they are actually substantive amendments across a range of fronts. I note in connection with Supplementary Order Paper 193 which is the Government’s Supplementary Order Paper that there is clarification of the extent to which the rights of a technological protection measure issuer under new section 226B impinge on the exercise of a permitted act or the undertaking of encryption research. There is also clarification of new section 226E as to who may undertake encryption research. 
So there we have this legislation. One is reminded of the curate’s egg—good in parts; not so good in other parts. I express the hope that when there is a change of Government in the next period it will be a priority of the new Government that this legislation will be looked at more critically and in a more holistic way to produce a better outcome.