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[Note: the TPM part of this post has been updated, 15 December 2006]

So, let’s see:

1. Australia has passed a copyright amendment bill, with lots of changes, particularly digital ones;
2. The UK has the Gowers Review Report, newly released – with various proposed changes for consideration;
3. Canada is still waiting, and … (wait for it, wait for it)
4. Now New Zealand has its own Bill! (big pdf here, text version here)

Guess those Canadians drafting their Bill will be looking at all this with interest.

But let’s have a quick squiz at the new kid on the block, the Copyright (New Technologies and Performers’ Rights) Amendment Bill 2006 (New Zealand).

So what does it do?

Well, for an international audience, it does the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty – plus some stuff on exceptions reflecting the current debate over private copying. For an Australian audience, it basically does the Digital Agenda stuff, plus a bit of stuff from some of our more recent amendments.

My summary? This law is a really strange – make that bizarre – mix of weird expansions of rights (particularly, the extension of property rights to webcasters and perhaps beyond – well beyond what the Broadcasters’ Rights Treaty will do), exceptions that won’t work (look at the format-shifting and time-shifting exceptions) – and TPM laws that look much better than anything I’ve seen anywhere else in the world.

And what happens next? Well, as far as I can see, what happens next is that Submissions are due February (late), the Parliamentary Committee (I think, the Commerce Committee) reports in June. So radically unlike us, it seems, NZ like to have time to think.

Over the fold: more detail.

Here’s the summary of changes, from the Explanatory Notes:

1. It expands (or clarifies) the reproduction right to include electronic copies – and creates an exception for transient/incidental copying worded along the European lines (copying not an infringement if it is transient or incidental, a necessary part of a technological process for making communication or enabling lawful use, and if it has no independent economic significance (whatever that means)).
2. It introduces the ‘right of communication to the public’ – to replace the broadcast/cable rights (like Australia did in 2000)
3. It seems to go further even than the current draft of the Broadcasters Rights Treaty – but giving webcasters, as well as broadcasters, a copyright right in their ‘signal’ (known as ‘communication works’). It also removes Pay TV’s right to retransmit Free To Air TV for free;
4. It limits the liability of ISPs for direct and indirect infringement;
5. It writes new anti-circumvention laws: expanding the existing, very limited provisions and introducing a criminal offence for commercial dealings with circumvention devices (more on this below);
6. It protects electronic rights management information, and introduces a criminal offence for commercial dealings with circumvention devices;
7. it clarifies and amends certain exceptions: including fair dealing, library, archival, and educational use, and time shifting (there’s a whole bunch of educational and library provisions)
8. it introduces new exceptions for format-shifting of sound recordings for private and domestic use (more on this below), and for decompilation and error correction of software.

The idea is that all the amendments will be reviewed within 5 years of enactment.

That’s their summary. Below, some more detailed thoughts.

The TPM Provisions

Of course, if you’ve ever before been a reader of this blog, you’ll know, I have this ‘slightly’ manic obsession with TPM provisions. Sad, but true. Particularly since we got our brand shiny new set of TPM provisions (aka anti-circumvention laws, aka the OzDMCA).

So how’s NZ looking? Actually, surprisingly good. Clearly they haven’t been talking to the USTR recently. Here’s a paragraph from the Explanatory Notes:

The focus of section 226 will continue to be on the link between circumvention and copyright infringement, and on the making, sale, and hire of devices or information rather than on actual circumvention. While actual circumvention may
not be prohibited, any unauthorised use of the material that is facilitated by circumvention will continue to be an infringement of copyright. Consumers should, however, be able to make use of materials under the permitted acts or view or execute a non-infringing copy of a work. This is consistent with New Zealand’s position on parallel importation of legitimate goods, for example, genuine DVDs, from other jurisdictions. New provisions are introduced to enable actual exercise of permitted acts where TPMs have been applied.

So, this New Zealand proposal:

1. Confines liability (like Australia used to) to the sale/dealing with circumvention devices – not their use (this is good. Geeks are ok)
2. Links liability for such devices to circumstances where the circumvention device could enable infringement of the copyright owner’s rights (as many user groups in particular in Australia argued should be the case here);
3. Has real live exceptions.

Personally, when I look at the text, I’m even more encouraged (although it is of course possible that, being someone who has just seen really badly drafted laws go through, perhaps anything that looks even slightly better starts to look good).

Taking a closer look:

1. A TPM is something which is “designed in the normal course of its operation to prevent or inhibit the unauthorised exercise of” a copyright right. That’s not bad – it doesn’t include access controls
2. A ‘TPM spoiling device’ (what we would call a circumvention device) is something that ‘has no significant application except for its use in circumventing a TPM’ (unlike Australian law, which covers devices that have only a limited commercially significant purpose or use other than circumvention)
3. You are only liable for selling circumvention devices, where you ‘know or have reason to believe that it will, or is likely to, be used to infringe copyright in a work protected by a TPM’ – so if you design your device not to infringe (eg, offer equivalent device), then you are ok.
4. If you are a user who wants to do a permitted act, and can’t do so because of a TPM, you can apply to the copyright owner first, and if they don’t respond within a reasonable time, you can apply to a qualified person (library, archive, or educational establishment) to exercise the permitted act on your behalf
5. TPM spoiling devices can be supplied to qualified person to exercise a permitted act (so, libraries, archives, and educational establishments can be supplied with spoiling devices to do permitted things).

It’s hard to think of a law anywhere in the world, that covers TPMs, that is better than this from a user perspective, and that more narrowly tailors the protection to actually protect copyright, not extend copyright rights. I think it actually passes the Litmus Tests. There are ways it could be improved for users – for example, instead of having to ask a library or educational institution to circumvent for you, why not allow the user to hire someone to circumvent or buy a circumvention device? but that’s a pretty minor quibble in what looks like a reasonable kind of law, from a user perspective.

{START UPDATE}
News today has caused me to have another look at the TPM provisions. The one (not insignificant) ‘black cloud’ on the horizon in the drafting here, I suspect, is in the proscribed acts. Certainly, the proposed law is good in that it focuses on the circulation of circumvention devices, and leaves users alone. As usual, the ban applies to both making/selling circumvention devices, and providing circumvention services. That’s normal too.

But, ‘circumvention service is defined to include “the publication of information … intended to enable or assist persons to circumvent a TPM’. In other words, if you publish information, intended to assist circumvention, you can be liable under these provisions. That is broader than most laws, including even the new Australian law. In Australia, under the new laws, circumvention service is defined as follows:

‘a service that:
(a) is promoted, advertised or marketed as having the purpose or use of circumventing the technological protection measure; or
(b) has only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention of the technological protection measure; or
(c) is primarily or solely designed or produced to enable or facilitate the circumvention of the technological protection measure.

So, what would the NZ law cover? Would it cover:

• a newspaper that publishes the fact that circumvention devices are available at a particular place?
• An academic, who places a link to a website where circumvention devices are available?
• An academic, who hosts a website full of various incarnations of the DeCSS code in artistic form?

Potential limit on free speech, yes? I wonder whether the NZ Bill of Rights would assist?

A requirement of intention does provide some assistance, of course, to protect the innocent provider of information. But let’s put it this way. A blogpost, describing how to circumvent a TPM? That would be illegal under this law, I suspect.

{END OF UPDATE}The format-shifting (NZ iPod) exception

Another rather interesting provision, of course, is the format-shifting exception. You have to love the fact that (a) we got one, (b) the UK proposes one and now (c) NZ is proposing one, all along similar, albeit distinct lines, all with slightly different conditions. Sigh. So the conditions on this exception are that, if you want to make a copy of a sound recording, for your private use:

1. You must make the copy from a non-infringing, non-borrowed, non-hired copy that you own, and acquired legitimately (overcaution, do you think?)
2. you must use the copy only for ‘private and domestic use’
3. You must make no more than one copy for each type of device, and you must own the device
4. you must retain ownership of the copy that you make.

So this is kind of interesting. Note that many of the conditions are similar to what we have here. However there are some interesting differences:

1. Australia doesn’t limit the number of copies to just one per kind of device. This was because the original condition (one per format) was considered not to allow what it meant to – ie, iPod use (see my original comments here). Despite these problems, the Gowers Inquiry seems also to have suggested a similar limitation. Looks to me like the NZ proposal has similar problems. Everyone knows that iPods crash, or people update to smaller, cooler iPods. If you can only make one copy per kind of device, then don’t you have a problem once your iPod crashes and you have to re-fill it?
2. The NZ proposal requires you to retain ownership of the copy (ie, you can’t copy a sound recording and then give the copy away), but the Australian legislation requires you to retain your original copy (ie, the CD you bought) – so people can’t buy CDs, copy them all, then sell the CDs second hand.

The Time-shifting exception

Oh my god. Have you seen their time-shifting exception? It’s like something our Australian Copyright Council would dream up. I remember well sitting in increasing disbelief as the Copyright Council representative argued to a Senate Committee that before taping a program to watch later, you should have to make reasonable inquiries whether you were able to purchase a download copy (oh, yes, before pressing ‘record’, I should go online to check whether they are selling copies. Laugh-worthy, truly laugh-worthy; almost as good as the ‘watch once’ condition that Joshua Gans has mocked elsewhere). For more of that argument, look at their (pdf) submission here.

What happened in NZ? Apparently, they’ve gone with that kind of condition. In NZ, you will be able to tape to watch later, provided you are ‘not able lawfully to access the communication work on demand’. !!!!!!!!!!!!!!!!!!!!!!

Uh huh. So, if Channel Nine are trying to sell you individual downloads of episodes for $2, you can’t use your VCR. Ludicrous. Just Ludicrous.

Protection of ‘Communication Works’: New Zealand’s Broadcasters’ and Webcasters’ rights

New Zealand, like Australia, currently provides for copyright in ‘broadcasts’ (and ‘cable programmes’): this is, in essence, a protection for the broadcast signal, as ‘broadcast is defined as ‘a transmission, whether or not encrypted, of a programme by wireless communication, where the transmission is capable of being lawfully received, in New Zealand or elsewhere, by members of the public’. This, apparently, isn’t technology-neutral enough. Post this Bill, if passed, New Zealand will be protecting “Communication Works”, defined as follows:

a transmission, or the making available by a communication technology, of
sounds, visual images, or other information, or a combination of any of those,for reception by members of the public, and includes a broadcast or a cable programme.

Very interesting! There has, after all, been a huge fight in WIPO about whether ‘Webcasters’ should get the same rights as ‘broadcasters’ – with a lot of people arguing the technology, and market, are different and so the case hasn’t been made for webcasters’ rights. Don’t tell our Attorney-General. He’ll probably be upset that there’s an area where Australia is not ‘leading the world’ in copyright reform… Technology neutrality gone mad, in my view.

Conclusion

So, there you have it, folks. TPM laws that I quite like – they’re quite limited – and exceptions that are just all over the place.

So, should it be supported? Depends on your priorities. But think about this. NZ have been wanting, I hear, to do an FTA with the US, right? So, if they enact these laws, on the TPM stuff, they have ‘something to give’ the US – a NZ DMCA, which would be tougher than this. It’s practically a tease, if you’re sufficient cynical – here, come do an FTA with us and we’ll get rid of this model that you don’t want us to have!!!

But the exceptions? Do you really want this niggardly, highly conditioned approach? Surely not.