New Zealand's DMCA is as good as it could be -- I was wrong!

Yesterday, I blogged about New Zealand's new DMCA-style copyright legislation, saying that it mirrored the US Digital Millennium Copyright Act. Copyfighting law prof Michael Geist sets me straight -- the Kiwis put one over on old Uncle Sam, crafting an anti-circumvention rule that's "probably the best anti-circumvention implementation anywhere in the world with a complete exclusion of access controls (ie. region coding), a positive right to circumvent for permitted acts, and even a system to allow 'qualified persons' to circumvent on behalf of those less technologically adept. "
On the anti-circumvention front, there are several things to note:

* the technological protection measures (TPMs) expressly exclude access controls such as region coding. In other words, the anti-circumvention provisions do not apply to devices that "only controls access to a work for non-infringing purposes."

* the legislation targets anti-circumvention devices, but excludes those devices that have something more than "limited commercially significant applications" other than circumventing a TPM.

* the law prohibits making, selling, distributing, advertising, or offering a circumvention device if the person "knows or has reason to believe that it will, or is likely to, be used to infringe copyright." The inclusion of a knowledge requirement creates an additional safeguard against overbroad application of the provision.

* most importantly, the law clearly permits circumvention for "permitted acts", which effectively preserves fair dealing rights (the statute also specifies the right to circumvent for encryption research). More impressive, the law includes a system to facilitate circumvention for permitted acts in the event that users are unable to circumvent a TPM themselves. In such cases, the law allows a "qualified person", which includes librarians, archivists, and educational institutions, to circumvent a TPM on behalf of a user (the user can also ask the copyright owner to unlock the work for them).

Link

See also: New Zealand bends over and offers up a DMCA to America with a shy, desperate smile

13

  1. I’m guessing New Zealand was pressured by the forces of economic imperialism to pass something like the DMCA. Congratulations to them for standing up for IP rights.

    Is this type of copyright legislation good enough for the powers that be? If so, it gives me hope for the rest of the world.

  2. Aha! I feel vindicated – http://preview.tinyurl.com/4s3hok .

    Thanks for the update, Cory. It’s pretty awesome to see someone issue a retraction with dignity.

    The MP who proposed the act is my local MP, Judith Tizard (New Zealand has MMP), so I followed the bill pretty closely as it went through its readings. A good critique of the remaining flaws it had (at the second reading stage) was given in a speech by Greens MP Nandor Tanczos, and is available at http://www.greens.org.nz/searchdocs/speech11325.html . For example, it doesn’t legalise format shifting for video, thanks to the select committee’s suggestion that that it isn’t widely used.

    In general, though, New Zealand copyright law remains pretty damn awesome. So says I, with a shy and desperate smile, as I offer up a dozen copies of Bridge on the River Kwai, for all my friends, legally. ( http://en.wikipedia.org/wiki/1957_in_film )

  3. Aha! I feel vindicated – http://preview.tinyurl.com/4s3hok .

    Thanks for the update, Cory. It’s pretty awesome to see someone issue a retraction with dignity.

    The MP who proposed the act is my local MP, Judith Tizard (New Zealand has MMP), so I followed the bill pretty closely as it went through its readings. A good critique of the remaining flaws it had (at the second reading stage) was given in a speech by Greens MP Nandor Tanczos, and is available at http://www.greens.org.nz/searchdocs/speech11325.html . For example, it doesn’t legalise format shifting for video, thanks to the select committee’s suggestion that that it isn’t widely used.

    In general, though, New Zealand copyright law remains pretty damn awesome. So says I, with a shy and desperate smile, as I offer up a dozen copies of Bridge on the River Kwai, for all my friends, legally. ( http://en.wikipedia.org/wiki/1957_in_film )

  4. The lack of legal protection for region coding was inevitable. Every DVD player sold in NZ has region coding disabled,a nd this has always been the case.

    Imported DVDs are common here, since not all titles are available in Region 4. (Also Region 4 videos sometimes take too long to get here).

  5. mhe I think you were closer the first time Cory. It’s still a violation of my private property rights to require me to seek out a qualified expert to circumvent the TPM on the media I own. I own it. That should qualify me to do it myself.

  6. Darryl- you have the right to circumvent it, but if you were not technologically literate enough to do so yourself, you’re allowed to get someone who is to do it for you. You’re not “required to seek out a qualified expert”, the expert is allowed to cirumvent TPM for someone else (an exemption to the personal-use-only rule).

  7. You know I think everyone is weary of fair use restricting legislation. The ONLY thing modern copyright protects is PROFIT and GREED.

    Modern corporate copyright does not share the wealth with original content creators. It merely uses it’s muscle and deep lobbying pockets to ensure that organizations like the WTO, WIPO and sponsoring nations render individual fair use issues mute for nothing more than the all might buck! (Yeah that highly inflated, valueless dollar that Bush Inc. and company keep printing like mad fools.)

    Remember, there was no money for health care, pensions, education, infrastructure renewal but there’s plenty of money for big oil and big media.

    -mliving

    ========

    “The primary objective of copyright is not to reward the labor of authors, but [t]o promote the Progress of Science and useful Arts.” “To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.”

    — US Supreme Court Justice Sandra Day O’Connor

  8. The world is flat and there is some hope that the rest of the world will lead the way. I am in the process of launching a cyberlaw practice which will have an “international bent” and I am avid reader of Professor Geist’s BNA cyberlaw newsletter. It tracks the daily pulse of what is happening globally in copyright and other cyberlaw topics. It is free and you can sign up here http://www.bna.com/ilaw/.

  9. Cory, it seems it really depends on who you’re listening to when it comes to the merits or drawbacks of this new law. You may have been right in the first place!

    An article in today’s New Zealand Herald says the law actually gives Hollywood studios, represented by NZFACT (NZ Federation Against Copyright Theft) along with record companies, represented here by RIANZ (the Recording Industry Association of NZ), more powers to force ISPs to play “copyright cops”, similar to what is happening in the USA. From the article…

    " Under the new Copyright Act passed this week, the Government has given Hollywood studios extra powers to crack down on internet piracy.

    NZFACT convinced politicians to make internet service providers their online police. And the internet people aren’t happy about their new role.

    Under the act, NZFACT and the record industry body Rianz can complain to ISPs about content available through their services which they say breaches their copyright.
    Organisations like the ISP body Ispanz and internet New Zealand said ISPs had not opposed putting complainants and alleged offenders in touch, as occurs in Canada.

    But they are furious New Zealand has adopted new obligations similar to those in the United States requiring ISPs to take down sites and make them unavailable. The requirement puts ISPs – some of which are small companies – in a vulnerable position for claims of lost revenue, said Jamie Baddeley, president of the ISPs body Ispanz.

    “We have to make a judgment about who owns copyright – how do we know?”

    The article goes on to talk about terminating internet accounts and ISPs being forced to use filtering technology. Hardly “as good as it could be”.

    " In New Zealand, Rianz chief executive Campbell Smith said the new law provides content creators with certainty in crucial areas after several years of change.

    Smith said he was happy with the new obligations. “ISPs will be compelled to take reasonable responsibility for the activity that takes place on their networks, suspension and termination of infringers’ internet accounts and the use of filtering technology.

    “On behalf of our member labels and musicians, we look forward to continuing discussions with ISPs about their responsibility for protecting copyrighted content on their networks.”

    But supporters for internet freedom are unhappy they are getting caught up in the copyright business.”

    Sorry for the long comment, but this really must be sorted out.

  10. Hayden –

    (Normal provisos: not a lawyer, just an activist)

    Looking through Geist’s analysis and the text of the bill, the ISP provisions aren’t great (AFAICS, the state of NZ ISP liability when take down infringing content are less clearly defined than both Canada’s and the United State’s provisions).

    But Smiths’ assertions are more hopeful rhetoric than the actual word of the new NZ law. “Responsibility for the activity that takes place on their networks, suspension and termination of infringers’ internet accounts and the use of filtering technology” are just the rightsholder talking points right now – they’ll pull them out at any media opportunity.

  11. The amendment bill dates back nearly seven years to an admirable ministry discussion paper that made a clinical argument in favour of the format-shifting exemption and declared that the basis of copyright law was not to balance competing rights, but to serve the greatest public good. It was a nice piece of work.

    That clarity started to erode as the process went on and copyright lobbying began — to the extent that the first draft of the bill was a bit of a shock. I never got the feeling that the select committee understand the technical arguments, but there was some attention paid at the executive level of government, and nearly all the movement was towards users’ rights.

    Virtually none of the submissions for additional tightening of the bill found any joy (RIANZ, outrageously, tried to have libraries and archives prevented from making digital copies for storage purposes).

    The format shifting exemption has been cleaned up somewhat, and a sunset clause was dropped, but there is still an untested ability for owners to contract out of format-shifting. Shrink-wrap contracts have never been tested in New Zealand courts, so no one knows what the hell might constitute a contract with an individual consumer.

    I’m encouraged by Geist’s reading of the “qualified person” part, with respect to breaking TPMs to carry out a permitted act. This has been largely taken here as a requirement to seek the help of an annointed librarian, rather than an option. You still need to have contacted the copyright owner for help and received either a refusal or no reply before you can go ahead and break that TPM. Of course.

    InternetNZ really stepped up the the plate for this one, and consciously made a submission that extended beyond its own direct interests because, well, no one else was going to. (I think our e-government unit’s work on the perils of DRM for public agencies may have helped concentrate minds too.)

    Ironically, InternetNZ seems to have scored least for itself — it made a strong case for Canadian-style “notice and notice” but didn’t get it.

    Basically, the bill could’ve been worse.

    There are links to some of the earlier documents here:

    http://publicaddress.net/default,3778.sm

    And the bill and the late amendments to it here:

    http://publicaddress.net/default,4908.sm

    (I’m not link-whoring, honest — the govt URLs are just indecently long!)

Comments are closed.