A major review of New Zealand’s Copyright Act is underway. An Issues Paper was launched by the Ministry of Business (MBIE) in November 2018 with submissions due by 5 April 2019. Once all submissions have been analysed by officials, it is anticipated that the Ministry will publish an Options Paper followed later by the legislation itself. The process promises to be an extensive one.
New Zealand’s current Copyright Act 1994 was introduced as part of the TRIPS – mandated legislative reforms which took place in New Zealand in 1994 and 1995. The New Zealand Act was closely modelled on the copyright part of the UK Copyright, Designs and Patents Act 1988. It underwent a major amendment in 2008 to enable New Zealand’s accession to the WIPO WCCT. Since then there have been some modest amendments as part of the implentation of the Comprehensive Trans Pacific Partnership (CTPP) Free Trade Agreement. (Some earlier legislative amendments to the Act passed in anticipation that the prior TPP Free Trade Agreement would come to fruition have been suspended).
The Issues Paper scopes out a total of 97 different issues on which submissions are sought.
The Issues Paper seeks input on some of the core provisions in relation to Rights. Sure to be controversial and hotly debated is the commissioning provision. Currently under s21 of the New Zealand Act the commissioning party owns copyright in certain categories of artistic works and computer software (a literary work). In 2006 – 2008 work was done on the commissioning rule by MBIE and a Bill developed that would give creators default ownership of commissioned works (rather than the person who commissioned the work). This work was never implemented because of a change of Government.
Technological Protection Measures are another series of provisions for review. When New Zealand implemented such provisions in 2008, they were very light handed. Given the ease with which digital copies can be made, TPMs have tended to become an important focus – particularly in relation to stream ripping activities. The Issues Paper notes that officials have received submissions already on two extremes:
“Some people have told us that the regime does not provide enough protection for distributing copyright works in the digital environment. Others have told us that digital markets appear to be developing adequately with the current TPM’s regime so no change is required ...
We have also heard the TPMs regime is overly restricted for users of copyright works and that the qualified person regime is impractical and underutilised.”
It is anticipated that the major areas of submission and contention will concern the Exceptions and Limitations sections covered in Part 5 of the Paper.
The Issues Paper acknowledges the primacy of the Berne “Three Step Test” (per Article 13 TRIPS Agreement) under which exceptions and limitations (1) are confined to certain special cases (2) do not conflict with a normal exploitation of the work, and (3) do not unreasonably prejudice the legitimate interests of the rights holder. Since the rapid digitisation of many copyright works from the late 1990’s extensive practices have grown up of licensing of copyright works. Under the Berne Three Step Test such licensing activities would seem likely to rein in some of the more extensive calls for liberalisation of the exceptions.
Australians weary of the Fair Use debate in their country will note the particular approach taken by the Issues Paper on this topic. The Paper notes the main focus is to identify problems with the Act as it is. A discussion on adopting a Fair Use exception has been included, but MBIE notes that:
“... We need a much better understanding of the problems with the current exceptions regime before we consider alternative options. Understanding these problems properly will enable us to determine whether adopting a fair use exception – or some alternative course – would be the best way of addressing them. Submitters should therefore focus on the problems or benefits with the current situation (our current permitted acts exceptions) rather than on the reasons why New Zealand should incorporate a fair use exception.”
Amongst the many issues relating to Exceptions on which the Issues Paper seeks input are:
- Whether any exception is needed for cloud services.
- Data mining and the creation of artificial intelligence.
- Parody and satire (noting that the number of jurisdictions including Australia, Canada the UK and the US already have exceptions that allow for parody and satire).
- The use of quotations.
It is noteworthy that the UK IPO has just published a call for submissions on the implementation and efficacy of the copyright changes introduced in that country in 2014 covering most of the above issues.
Education and library exceptions were a hotbed for submissions under 1994 Copyright Act. This round seems likely to be no exception with the GLAM sector and Universities lining up to push for greater rights and free use of copyright material.
On the issue of enforcement, the Issues Paper askes for input on:
(a) Whether groundless threats of legal action for copyright infringement are a problem;
(b) Whether the border enforcement regime requiring payment of a $5,000 bond is deterring rights holders from taking action;
(c) Whether peer-to-peer filing sharing technologies are being used to infringe copyright and what is the scale breadth and impact of this infringement;
(d) Whether additional enforcement measures are required for addressing online infringements. No doubt this has in mind the statutory provisions for site blocking implemented in other countries. However the decision of the UK Supreme Court in Cartier in 2018 confirmed that the UK Courts had inherent jurisdiction to grant such orders.
(e) Are there any problems with the types of criminal offences or the size of penalties available under the Act?
There are two final sections of the paper which deserve mention:
(1) Industrially-applied Copyright
The first concerns the fact that New Zealand grants extensive copyright protection to industrial designs. The paper asks whether there are any problems with or benefits from having an overlap between copyright and industrial design protection and what changes if any should be considered.
(2) Indigenous Rights
There is a special section dealing with expressions of Māori traditional knowledge. A New Zealand Tribunal (The Waitangi Tribunal) has in the Wai 262 case made a number of recommendations to ensure recognition and protection of Māori rights and interests under the Treaty of Waitangi and the different regimes that make up New Zealand’s intellectual property system. The Tribunal found that the copyright regime did not provide adequate protection for Māori rights and interests. Rather than recommending changes to copyright law, the Tribunal recommended that the Crown establish a new, unique regime to provide new protections. Part 8, Section 2 of the Issues Paper therefore seeks feedback on current protections in copyright. Are there ways in which the copyright regime might conflict with any new protection of indigenous works? Do submitters and the public agree with the proposed process to launch a new workstream on Māori “Taonga works” alongside the Copyright Act Review.