Tanczos Nandor: Copyright (New Technologies and  Performers' Rights) Amendment Bill — First Reading 
Tanczos Nandor: Copyright (New Technologies and  Performers' Rights) Amendment Bill — First Reading 
[Volume:636;Page:7194] 
NANDOR TANCZOS (Green) 
: 
 The Copyright (New Technologies and Performers’ Rights) Amendment Bill has been so long in the drafting that some of the more telling criticisms of it can be found in the ministry’s own early documents. The ministry’s 2002 position paper for example states it is the ministry’s view that it is not the role of the Act to protect access-control technology which is used in some cases to price discriminate and control the geographical distribution of works to the detriment of users. I absolutely agree with that. Our copyright law should not be used to help firms to price discriminate and to control where and how works that have been legally purchased can be used. That would be to the general detriment of users and it would stifle innovation and research. Yet that is precisely what the current bill would do. It would turn this Parliament into a tool of corporate control by mimicking some of the least desirable features of prior American legislation on this topic. 
To be fair there are some good points. The bill tries to distinguish between the personal use and commercial use of digital material but with mixed results. It protects Internet service providers from being in breach of the Copyright Act as they conduct transient copying during the process of delivering web material and it has also tried to come up with a workable notion of “fair dealing” in copyright material. It tries to exempt sound recordings that have been ripped to an iPod or for playing in the family car. It also seeks to create another exemption intended to legalise the use of multi-zone DVD players. Those are welcome advances—or they would be if they were unambiguous. I acknowledge the comments of Chris Finlayson in his call for a comprehensive approach to the whole issue of what constitutes “fair use”. 
If we take the issue of format shifting as an example currently under the Copyright Act it is illegal to rip a CD that one has legally purchased on to one’s iPod or to make a copy to play in the car. Under this bill it would be legal to take a CD that one has bought and make one copy for each of the replay devices that one owns. Yet incredibly that provision has been given a sunset clause. The exemption that allows a person to format-shift the sound recordings that he or she has bought will expire 2 years after the legislation has been passed unless it is explicitly renewed by Order in Council. 
It seems to me to be a basic principle that once we have bought a CD we should be allowed to decide how we use it in our own homes. How will this exemption work at all if a record company attaches non-copying technology to its CDs? Under this bill it would appear to be illegal to try to circumvent that technology and to try to enforce one’s legal rights in New Zealand. One of the concerns raised by the Privacy Commissioner around this very point was that such proposals may force New Zealanders to accept intrusions on their rights that may not be consistent with New Zealand law but that it would be illegal to circumvent. 
In addition why has the exception for copying purchased sound recordings for personal use not been extended to audiovisual works as well—that is to say to DVDs as well as CDs? People do format-shift both CDs and DVDs and they will increasingly do so—it is just a simple fact of the world we live in. 
The line between personal use and commercial use also gets very blurry very quickly. If personal use can be argued to have commercial implications—if one merely communicates information about the structure of encryption codes to others who then use that for commercial or criminal purposes—the chain of liability seems very unclear. Presumably one cannot be held criminally liable for the end uses of digital information by others. 
It is also unclear to me how under this bill as it is drafted one could carry out open-source research which can be said to be for personal use but can have commercial applications too. The entire open-source movement whose overwhelming strength and contribution to the entire evolution of the World Wide Web and the Internet has been based on its readiness to share how codes and formats work could all be torpedoed by this legislation. We would be legislating against the new breed of web innovators. Where for instance will interoperable competitive products fall on the spectrum as the bill attempts to strike a balance between copyright and personal use? In one sense it is clearly of personal advantage to be able to develop one’s own product but will that not entail cracking and disseminating the codes and formats of the units one wishes to interoperate with? 
But as I have previously indicated my most fundamental problem is with regard to the degree of protection that the bill offers to technical protection mechanisms. Those anti-circumvention measures primarily put Parliament into the service of corporate profit-making. They give no discernible defences at all that I can see against malware or encrypted surveillance measures that corporates may well incorporate into digital works that they distribute. Collectively these measures will—and currently already do—work to stifle innovation and research. 
Let me be clear at this point that the bill despite its name is not actually about protecting the copyright of artists. Their right to a decent income from what they have created is not the driving motive of this bill. Nor will this bill stop piracy or counterfeiting. The US legislation that the bill mirrors has been invoked not against pirates but against consumers scientists and legitimate competitors. This bill seeks to enshrine the rights of corporations over cultural and scientific property. Artists with very few exceptions will continue to receive a pittance for the fruits of their labours. After all the bill is about the right of corporations to exploit consumers at every point in the delivery of digital material and it seeks to make a criminal out of every citizen who tries to resist those corporations’ power to do so. For example corporations in the United States have already sued nearly 2000 individuals who have engaged in the file sharing of music. 
Just today we have been debating legislation to end Telecom New Zealand’s monopoly of access to the local loop. Why on earth would we want to create a new realm of legislation that enshrines monopoly access in the digital domain? 
The international verdict on this legislation is already in. Cory Doctorow of Boing Boing the world’s most widely read blog has this to say: “New Zealand MP Judith Tizard has sponsored an amendment to New Zealand’s Copyright Act. The new copyright proposal mirrors the USDMCA … . This has been an unmitigated disaster in the US: not only has it totally failed to keep copyrighted works from being copied without permission … [but] it has also created an anticompetitive marketplace where companies can sue their competitors for making compatible products.”—for making compatible products! Cory Doctorow goes on to state: “Not to mention the devastating effects on user rights and the chilling effect on legitimate security research. The US had an excuse:” Doctorow concludes “when it passed the DMCA in 1998: nobody had tried this and seen how bad it was … . But here we are 8 years into the DCMA trainwreck—what possible excuse can New Zealand have for adopting this failed US policy initiative? Why would you want to import another country’s disaster?” 
This Parliament has to ask itself that question. In fact as someone has already said about this bill people can poison a river and get a slap on the wrist—or maybe get a consent as happened in Pareora just today I think—but if they try to tamper with a multinational’s international property rights then the book really gets thrown at them to the tune of fines of up to $150000 or 3 years in jail in the case of this legislation. Why on earth do we want to introduce that kind of legislation here? 
I will make one final comment around the exemptions for educational purposes. The point was made in an email that came to me only today from Steven Marshall that the  
Copyright Licensing Ltd v University of Auckland 
 decision has made it abundantly clear that exceptions in relation to educational purposes must be interpreted as narrowly as possible. In practical terms it is very hard to stay within the limitations of the Act. New Zealand institutions have discovered that to their cost. In effect every institution must use licences in order to manage the risk. The bill’s regulatory impact statement acknowledges that obliquely by saying that maybe some libraries and educational establishments will be prevented from making particular use of copyright material without a licence from the copyright owner but that it is OK because it may already be copied under their licensing agreements. This rosy view of the world of licensing ignores the experience of Australia which is often an accurate predictor of what will occur in New Zealand in this area. We have to remember that licensing for the digital provision of materials is substantially more expensive than for paper-based materials—up to 10 times the fees for the same content if it is in a digital format. Institutions are having to invest heavily in onerous tracking and notice provisions.