Finlayson Christopher: Copyright (New Technologies and  Performers' Rights) Amendment Bill — First Reading 
Finlayson Christopher: Copyright (New Technologies and  Performers' Rights) Amendment Bill — First Reading 
[Volume:636;Page:7189] 
CHRISTOPHER FINLAYSON (National) 
: 
 National will support the first reading of the Copyright (New Technologies and Performers’ Rights) Amendment Bill so that it can be considered carefully by the Commerce Committee. The first copyright Act was the Statute of Anne passed in 1709. It was enacted to protect authors who found that printers and booksellers were printing reprinting and publishing their books without their consent. Since that statute the Westminster Parliament has adapted the copyright system to cope with the technological advances of each age and New Zealand’s copyright law has always been closely linked to the UK legislation. 
In the 20th century this Parliament has made a number of changes to copyright legislation in order to provide protection for radio broadcasts films and television broadcasts. About 20 years ago the law of copyright in England was reviewed. The 1709 legislation was described as a modest Queen Anne house to which there have since been added Georgian Victorian Edwardian and finally Elizabethan editions each adding embellishments in the style of the times. This bill which seeks to amend the Copyright Act 1994 could be said to be a late Elizabethan embellishment. 
One feature of this bill is that on occasion the equivalent English provisions are departed from in favour of provisions from Australian or United States copyright legislation. I think the select committee will need to examine those clauses whereby there is a departure from the English provisions to make sure that they are appropriate and that the legislation remains intellectually coherent. 
The Copyright Act 1994 requires a comprehensive review; we only have to look at the huge issues facing the law of copyright. For example will protection and encryption technologies beat the hackers and the copiers? Will copyright enforceability weaken over the next few years? Effective copyright enforcement depends on a delicate balance of technologies as protection abilities must outpace copying abilities. This balance is unlikely to continue during periods of rapid technological change such as we are now experiencing notwithstanding the provisions of this bill. Indeed there are some who believe that the enforcement balance is turning against copyright. These questions show why a comprehensive review is required and why there needs to be a fresh discussion about the appropriate balance between the interests of creators and the public. I am disappointed that the Minister has failed to institute a comprehensive review of our copyright law. 
There is another reason why this kind of law reform is required. Amendments of this kind—piecemeal amendment—can damage the fabric of legislation. Rather than tinkering with legislation on occasion it is preferable to have a comprehensive review to go back to first principles and to make changes in a principled manner. 
Before making some comments on the detail of the bill I will make a general comment about what I consider to be the key issue not addressed by this legislation: consideration of the other side of the copyright equation namely dealing with use that does not infringe the owners’ legitimate rights. For example there seems to have been no consideration of the recent proposals made by the US Library of Congress in relation to orphaned works. Various reports of the ministry have rejected a wider fair-use protection and that has left New Zealand copyright legislation with a mishmash of specific exceptions. 
I first address key terms in copyright which are a very important issue in this bill. Many of the basic concepts in the Copyright Act 1994 remain relevant. However two terms are changed by this bill. References to broadcasts and cable programmes are to be deleted and replaced by a new concept entitled “communication work”. The new term is defined by an amendment to section 2 of the Copyright Act inserted by clause 3(2) and it “… includes a broadcast or cable programme”. So the bill strips the Act of all references to broadcast and cable programmes and instead substitutes the term “communication work”. I hope the Commerce Committee analyses that definition carefully to ensure that it adequately covers all new forms of technology. I agree that the current definition of cable programme is inadequate but it may be wise for the select committee to consider retaining some notion of broadcasting. 
Clause 44 which inserts section 81A is a very important clause and needs some work in my view. The first issue is whether what is proposed is the right policy response to the issue of making music available for portable devices. It could be argued that the market can provide the answer. What is proposed will permit home recording for private and domestic use but the select committee may want to give some further thought to this issue. In addition the section inserted by clause 44 has a sunset provision and will expire 2 years after the date on which it comes into force unless renewed by the Governor-General by Order in Council. The select committee may wish to consider whether that sunset provision is necessary or desirable. I have my doubts. It does not make sense that my right to download music to my iPod should automatically lapse. How will it be enforced? I think this provision needs a great deal of work done on it and I understand that as currently drafted it satisfies neither side of the debate. 
I also have some concerns about clause 49 which repeals section 88 of the Copyright Act. The select committee will also need to take a good look at this clause. There is an argument that section 88 could be extended to permit satellite retransmission of free-to-air broadcasts and not just cable retransmissions. Enabling simulcast of free-to-air channels by digital satellite broadcasters will enable consumers in some parts of New Zealand to receive a much higher quality picture and in some cases channels that they are currently not able to receive. My understanding is that the equivalent provision in Australia has been extended to include satellite retransmissions. The explanatory note states that section 88 is “… no longer suitable to achieve the original policy objectives of encouraging competition and improving quality of television reception.” but no reasons are given. Why is New Zealand adopting a different approach? What does the change in policy mean for those parts of New Zealand where there is no established cable network? I hope the select committee will look at those issues. 
Clause 53 introduces a number of sections that address the issue of the liability of Internet service providers for the infringement of copyright. Three circumstances are specified and I will not address them now but I know that the select committee will want to look carefully at those provisions. 
For the purposes of this speech I do not have any substantive comments to make on those clauses that amend Part 4 “Moral Rights” of the Copyright Act. The amending clauses delete references to broadcasts or cable programmes and substitute the term “communication works”. For the purposes of this first reading speech I do not have anything much to say about Parts 6 and 9 which likewise ratify the terminology changes I have referred to earlier. 
The final clause I will refer to is clause 89 which introduces sections after section 225 of the Act. A subpart entitled “Technological protection measures” is introduced. In simple terms one can explain all this by saying that there have been some major technological changes since 1994 and that these have given rise to new forms of digital communications and ways of protecting this new technology. These measures receive protection under the bill—for example it becomes a criminal offence to provide or manufacture goods or services that act as a technology protection measure spoiler. It also becomes a criminal offence to alter or destroy any copyright management information attached to copyright material and to sell any material that has its copyright management information destroyed. I understand that these provisions are modelled on the American Digital Millennium Copyright Act. 
The Commerce Committee will want to consider the appropriateness of applying criminal penalties to actions that have not been considered to be the true business of the Copyright Act. The provisions expand the scope of copyright law and may not in fact be in the public interest. A better approach may be to allow bodies to grant exceptions that are justified in the public interest. I refer to the Library of Congress in the United States which can issue regulations permitting certain breaches. I understand that the library has recently allowed an education exception to allow the encryption mechanism to be broken on DVDs so that professors can show a particular scene from a film for example to their students for educational purposes. 
In conclusion therefore National supports the first reading. There are a number of important issues that the select committee will need to consider. As I have said I think this type of law reform in such an important area is second rate. If the Government thinks that intellectual property laws are so important it should institute regular and comprehensive reviews. This bill does not deal with many other major contemporary issues in the law of copyright and it should. With those comments I look forward to being part of the Commerce Committee which will debate such issues as do appear in the bill.