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Updated copyright act addresses new technologies

Updated copyright act addresses new technologies

The best lesson I ever had about copyright was when I was at Otago University, laboriously piecing together lines of lead type letter by letter for an old fashioned, hand-operated printing press – as an assignment, because you wouldn’t do it for fun. It is a laborious task. One page of text can require many hours of fiddly, difficult work, especially when you’re not used to it. I felt that I really owned the end result. Copyright had long-since expired on the literary work that I copied – a poem (try laying that out by hand!). But copyright has layers, with these layers often spanning across a number of media. I certainly owned the copyright in the layout layer.

Copyright law was originally created as a reaction to the printing press. People who wrote books or sheet music understandably didn’t want other people to rip them off by profiting from unauthorised copies of their works.

Copyright law is now enshrined in our Copyright Act 1994. Past changes had been made to reflect the emergence of audio and visual recordings, and broadcast of those recordings via radio, TV and cable services, and other improvements on the hand-operated press such as photocopiers.

But technology is always changing, with rules that work for the hand-press not automatically working for the iPod or the PC. Under the old law even transient reproduction of work, such as copying an MP3 file into memory for playback, was technically a copyright infringement. So amendments were needed to bring copyright law into the digital millennium.

Parliament has recently passed the Copyright (New Technologies) Act 2008, changing New Zealand copyright law to better reflect the impact of new technologies. Key changes under the 2008 amendments are:

There is a new type of copyright protected work: a “communication work”. Communication works include transmission of sounds, images or other information, including traditional broadcasts. The definition does not specify any medium for transmission so it can include TV, radio, internet and digital TV transmission.

There is a new regime for internet service provider (ISP) liability for the material they host. There is a process for copyright owners to notify ISPs that they are hosting copyright infringing works, requiring the ISP to take down infringing postings. If an ISP ignores a valid take-down notice, it can be liable for copyright infringement. Great fun for the ISPs – if you are one, you should get some legal advice pronto if you haven’t had it already.

Personal users are now allowed to time-shift communication works (eg taping a football game – formerly a breach), but the user must not keep the copy for an unreasonable time.

Personal users may format shift one copy of a sound recording for personal use. This means that you can copy your CD onto your MP3 player. Note the italic type, people: you have to own the original CD. This permitted format shifting does not extend to video. Also, the copyright owner can contract out of this format shifting provision.

There are new sections dealing with technological protection mechanisms (“TPMs”) and technology designed to circumvent TPMs. You must not use a TPM circumvention device to infringe copyright. It’s a criminal offence.

If you make, buy, sell or deal in software, video recordings, sound recordings or technology that can be used to copy any of these, then you need to know whether the new law affects your business.

Richard Anstice is a staff solicitor in Rae Nield’s office. This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae and Richard can be contacted at raenield@marketinglaw.co.nz.


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