copyright amendment workshop

I attended the Auckland InternetNZ session on the Copyright Amendment Bill last Wednesday. This was part of InternetNZ’s process of consultation to help frame their submission to the Commerce Select Committee. The presentations and discussions also helped many in translating the language of statute to discover the essence of the bill. The submission period has now been extended, so you have until March 9 to provide your input into the proposed changes.
The materials from the presentations are available online.

Here are a few issues that emerged:

Format shifting
The provisions provide weak rights to the consumer. As previous noted:

• There is a two year sunset clause which will see this right removed unless the clause is renewed by an Order in Council.
• Companies can remove this right through contracting out.
• It is limited to audio material.

One issue I hadn’t seen raised before is the “private and domestic” use clause limiting the format shifted music to your home. Clive Elliott raised the question of whether it would be legal to listen to your format shifted iPod music at work.

As noted by more than one learned lawyer at the workshop - the format & time shifting clauses will be irrelevant to most NZers. After all we have been happily time shifting since Sony introduced the consumer video tape recorder in 1975, have been copying CDs onto iPods/MP3 players since the Diamond Rio appeared and will continue to copy DVDs onto portable video players such as the video iPod. Despite the fact that this will remain illegal if the bill is passed in its present form.

Law? The Big Picture
This is an area where the law as statute and the law as in what is socially acceptable are poles part. The format shifting and time shifting provisions do help close up the gap. The question of what is fair in the balance between copyright holder and society was raised by questions from the floor. These sought to question or reframe the basis of copyright. As Bronwyn Turley from the Ministry of Economic Development noted the process, leading to this bill, has solely been targeting a digital update of current legislation, and not a complete review of copyright.
More importantly NZ’s ability to redesign copyright within our jurisdiction is framed by our international relationships including the treaties on IP and Trade we are signatories of.

TPM test case
If the bill passes, without change to the TPM sections, we will have an interesting test case with the introduction of the new high definition video discs into NZ. More specifically the test will involve the lawful playback and viewing of region controlled video. Although the back catalog HD DVD discs now available appear to be region free, it is clear that some form of Region Playback Control (RPC) is likely to be introduced. This would bring HD DVD in line with Blu Ray which already has defined its RPC. Therefore it appears certain that we will be able to legally import a HD DVD or Blu Ray disc which will not play in a NZ zone player. It is equally clear that the MPA et al are aware of this thorny issue and are lobbying against it through submissions to the US government.

TPMs & Creative Innovation
During Peter Gutmann’s presentation on TPMs he cited an example of a creative individual being stymied by TPMs that prevented them from viewing their own content on a PC. The TPM in question was Macrovision, an analog video TPM. This issue emerged last year when there were fresh attempts to impose measures against the so called analog hole. TPMs pose a real danger to creators. In protecting ‘proper’ content all other content is assumed to be illegal. This will remove or reduce the functionality available to creators who are limited to consumer level equipment. Given that copyright is supposed to exist to promote the creation of works, if TPMs place a barrier to creation you have to wonder if they have a place in copyright legislation.

Creative Commons & Govt
There was some brief talk during the panel on the history of attempts to get a NZ set CC licences available. Afterwards during drinks there was a suggestion raised that when a NZ CC non-commercial licence exists it would be a great way to allow government departments, SOEs and CROCs to provide non-commercial use of our information and content assets - whilst still allowing commercial exploitation. By allowing citizens to experiment with our national assets commercial applications could be discovered. In a similar way that the BBC’s Backstage non-commercial feeds have helped spawn commercial licence paying applications. BTW for a great discussion on the realities of DRM and complex rights situation within archives spend a hour listening to backstage’s first podcast.