Hereora Dave: Copyright (New Technologies) Amendment Bill — Third Reading 
Hereora Dave: Copyright (New Technologies) Amendment Bill — Third Reading 
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DAVE HEREORA (Labour) 
: 
 I take this opportunity as a member of the Commerce Committee to take this call in relation to the Copyright (New Technologies) Amendment Bill. I took a couple of areas as being of particular interest in this bill which were to do with educational establishments and library provisions particularly in regard to ensuring that at the very least students had the opportunity to gain information for their learning and that they were protected in being given that opportunity. 
Currently for educational establishments archives and libraries there are a number of exceptions for copies of works so I suppose it was necessary for the bill to clarify how these exceptions will work in a digital environment. There are some minor amendments to the educational establishment provisions that are designed to overcome practical difficulties with the provisions such as problems identifying the author of a work particularly in regard to courses that a work would be used for but also in regard to the requirement for libraries to look at written requests and to make and retain declarations when they are copying digital material. These requirements were removed because they would have been administratively difficult for libraries to comply with and there is no evidence that libraries have abused or would abuse provisions to infringe that copyright. 
Some of the interest and concerns from the public were around the risk that works would be copied and transmitted by or to the general public and that an educational establishment or library could effectively substitute for the role of commercial distributors or publishers. I suppose that the committee’s consideration was that the amended clauses did not condone copying or that the transmission of digital works in these actions continued to be an infringement of copyright; rather they provide practical mechanisms for educational establishments and libraries to copy digital material in a way that is consistent with the current exceptions in the Act with completely complex and unnecessary compliance requirements. So I suppose our consideration was aimed to ensure at the very least that there was the opportunity still for libraries and those establishments to be able to provide that material when necessary. 
The other area that I took interest in and my colleague speaking previously raised the matter was format shifting—trying to deal with the fact for example of someone using an MP3 player whether in public or at home and clarifying with that the existing position under the law: how an owner can contract out of a format shifting provision and the requirement for a person to obtain the original sound recording in their possession if the format had shifted. So there was a real need for the deletion of a clause in the provision that would have meant it expired after 2 years. This was to avoid uncertainty about whether people who purchased older sound recordings would be able to continue to format shift in the future. 
A further area was that of Internet service provider liability where the provision that the limit of the Internet service provider liability for copyright infringement had to be applied in specific circumstances. Some amendments were made to these provisions as a result of our consideration of the bill largely on the recommendation of specialist advisers—and I have to say that their advice was very handy in giving us some tuition and direction. The requirement in the bill was that an Internet service provider would have a limitation on liability only if they had adopted a policy around termination of accounts or repeat infringers. Some people were really concerned that this was unnecessary as the standard of Internet service provider terms and conditions generally already allow for this and that its scope and application were unclear. 
In relation to changes to the notice and take-down procedure in the bill the provision had specified that an Internet service provider is not infringing unless it knows or has reason to believe that the material is infringing and also that it does not delete or prevent access to the material as soon as possible so they can become aware of it. As a result of that concern—that is that it did not provide sufficient certainty for Internet service providers about when they would be required to take material down and that it did not diverge from tests in other jurisdictions—the following change we thought was necessary. That was that a test was altered to clarify that the Internet service provider must either know or have received a notice that the material was infringing and that there is a new requirement that notices must be properly completed signed and written in the prescribed form. There is a new offence for knowing or recklessly providing a notice that is materially false or misleading and the requirement for an Internet service provider policy for termination of accounts of repeat infringers was removed because it was unclear in its scope and application and Internet service providers already generally have terms and conditions that cover that. There was a particular concern from Internet service providers that it would be difficult to determine whether they complied with the provision which could leave them exposed to that liability. Of course the new provision relating to this obligation is to remove material that provides that Internet service providers will not be shielded from liability if they have knowledge of infringing material. Therefore notice would be required in this situation. We also looked at posing that the drafting of this provision could be clarified through a Supplementary Order Paper later. 
The new offences apply only where a person knowingly or recklessly provides a false or misleading notice and where those notices are false or misleading in a material way. An inadvertent or minor error in a notice would not give rise to that liability. So the provisions relating to the preservation of the injunctive relief in the bill were amended as a result of recommendations from the specialist advisers to the select committee. These amendments were to give effect to that clear policy and intent which was to preserve the ability for rights holders to seek injunctive relief. 
The last area I want to make note of is that of protection measures and in the second reading debate quite a lot of speakers from the Commerce Committee raised this issue. It was in relation to extending the current technical protection measure provisions so that the technical protection measures which protect all exclusive rights under copyright were protected to ensure that there was some form of penalty in relation to an offence for commercial dealing in technical protection measure circumvention devices means and information and also to contain provisions to enable users to seek assistance from such trusted institutions as libraries and educational establishments to break technical protection measures to exercise permitted acts under Part 3 of the Copyright Act. I suppose key changes that we determined were the clarification of the technical protection measures to be designed for purposes other than the protection of copyright and also the enabling of users to seek assistance from trusted institutions; it was simplified so that a user no longer needs to apply to a copyright owner before he or she seeks assistance from a trusted institution. There is also a new ability for the class of trusted institutions to be extended by Order in Council as the amendments were made on the recommendation of those advisers who as I said earlier were really good in giving advice to the committee. 
Those were the four areas that I thought were of particular interest and I reiterate that although we are dealing with new technology everyday I support this bill and recommend it to the House.