Mahuta Nanaia: Copyright (New Technologies and Performers’ Rights) Amendment Bill — Second Reading 
Mahuta Nanaia: Copyright (New Technologies and Performers’ Rights) Amendment Bill — Second Reading 
[Volume:641;Page:11548] 
Hon NANAIA MAHUTA (Minister of Customs) 
 on behalf of the 
 Minister of Consumer Affairs 
: I move  
That the Copyright (New Technologies and Performers’ Rights) Amendment Bill be now read a second time 
. The Commerce Committee must be thanked for its thorough consideration of the bill and also the many submitters who contributed their views to the select committee process. This is important legislation which is designed to update and clarify the Copyright Act. This is particularly necessary in response to the introduction of the many new technologies that now impact on the development and use of the Internet digital music and film. The bill promotes a modern legal framework that guides the protection and use of copyright material and it will provide greater clarity about how the Copyright Act applies in today’s digital environment. The bill maintains the balance between protection and access already established in the Act and ensures the effective operation of the Act in the face of emergent technologies. 
Maintaining a current and contemporary intellectual property rights system promotes development of the economy and New Zealand’s identity by encouraging investment in creativity and innovation. Copyright forms an integral part of the system by protecting our creative industries as well as our information and communications technologies by prohibiting unauthorised reproduction. For the system to remain fair and effective it must evolve with the emerging needs of a dynamic and technology-supporting economy. The bill’s purpose is to update and clarify the Act in response to the introduction of new technology such as the development and use of the Internet digital music and film. The bill creates a more flexible framework for technology to operate under by redefining certain terms contained in the Act to make them more technology neutral. 
Several points were raised at the select committee and they will be committed on briefly. The bill as introduced repealed section 88 of the Act which currently allows cable programme services to retransmit free-to-air television broadcasts without the permission of the broadcaster. The select committee reinstated section 88 as a result of concern about the delivery of broadcasts to remote areas. Section 88 does not fulfil the objectives that it was originally put in place to achieve—namely to encourage telecommunications investment. In the current environment there is limited likelihood of cable TV being extended which is why a Supplementary Order Paper has sought to repeal this section of the Act. 
The bill also clarifies the liabilities of Internet service providers—“ISPs”—when it comes to copyright infringement particularly where infringing content is posted using their services. Clarity is provided by modifying the law in two ways: firstly by stating there is no liability for copying that takes place as a matter of course in Internet service provider services and secondly by providing that there is no liability for an Internet service provider when storing infringing material provided it deletes or prevents access to the material when it has reason to believe that it infringes copyright. That has been described as a “notice and take down regime”. 
The select committee made some changes to the regime in the bill as reported back. The requirement for Internet service providers to have a policy for the termination of the accounts of repeat infringers was removed as the scope of that requirement was unclear and Internet service providers’ standard terms and conditions generally already provided for that. A standard form for notice has been provided giving Internet service providers more certainty about when information should be taken down. An Internet service provider will now be liable only if it is aware of infringing material and does not remove access to it. There is now a specific offence for providing notices that are misleading. 
Technical protection measures or “TPMs” are mechanisms used by copyright holders to guard against the unauthorised reproduction and distribution of copyright works which can easily occur with the use of digital technology. The bill gives a more comprehensive protection to technical protection measures in response to the increased risk of piracy. Currently the Act protects only copy protection measures. The bill gives copyright owners the ability to take action in respect of devices means or information where circumvention could enable infringements of all the copyright owner’s exclusive rights and not just copying. In addition the bill introduces criminal offence provisions in limited circumstances where there has been large-scale commercial dealing in copyright material. 
The bill also introduces new provisions relating to the actual exercise of permitted acts where technical protection measures have been applied. Those would enable the beneficiary of a permitted act who has not had the ability to circumvent to have the option of seeking assistance from the copyright owner or a qualified person. In this instance a qualified person means a prescribed library or archive or an educational establishment. The select committee made changes in this area which included a redefinition of technical protection measures to clarify that access control technologies are not protected where they do not prevent the infringement of copyright. The insertion of a new section will ensure that qualified persons cannot charge an unreasonably high fee for providing assistance and the insertion of a new regulation-making power allows the Governor-General to specify persons as qualified persons by Order in Council. 
 The bill provides a limited exception for copying sound recordings for personal use. That exception has been clarified so that the copy is to be used only for the owner’s personal use for the personal use of a member of the household in which the owner lives or for both. There is already widespread format shifting of music and this amendment aligns the law with the public’s needs although it still takes into account the protection afforded to the copyright owner. The select committee also stated that the original purchaser must retain both the original version of the sound recording and the new copy and reiterated that the exception does not extend beyond sound recordings to any other works such as films. This provision is not intended to legitimise CD copying for friends or online file-sharing but rather reflects the realities of format shifting in a technology-changing world. 
Permitted acts are exceptions to copyright infringement provided for in the Act. The bill updates the existing permitted acts for fair dealing and for libraries archives and educational establishments and clarifies how permitted acts should apply in the digital environment. The bill removed from libraries and archives a number of compliance costs that govern the supply of digital copies. The select committee added a number of amendments to the original bill. A number of the compliance costs for libraries and archives that governed the supply of digital copies were removed. For educational purposes educational establishments can create a digital copy of a work provided that certain conditions are met. Libraries and archives may make a digital copy provided that a replacement for the original work is necessary for the benefit of research. Educational establishments that store copies on a website or on an electronic retrieval system need not identify authors in all situations and material on the Internet or other electronic retrieval systems need not be removed before allowing authenticated users to access it. 
The bill replaces copyright owners’ existing technology-specific rights to control distribution through broadcasting and cable programme services with a technology-neutral right that applies to all forms of communication of copyright works to the public. That includes information that is passed through the Internet such as email peer-to-peer file-sharing and other digital forms of communication. The definition of “copying” has been amended so that it applies to the digital reproduction of all forms of works. Copying is often essential to the operation of digital technology computers email services DVD players and even the anti-skip function on a portable CD player. The bill amends the Act to introduce a limited exception for transient reproduction in certain circumstances to allow for that copying. A lawful user of a computer programme may observe study or test the functioning of the programme under certain circumstances without infringing copyright. 
Once passed the bill will be reviewed within 5 years to respond to technology advances and maintain its effective operation. This is a timely and necessary bill. Once again I thank the select committee its members and the clerks of the committee. I commend the bill to the House.