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Lane Neave Partners Graeme Crombie and Anna Ryan discuss the MBIE Issues Paper on the Review of the Copyright Act 1994. They urge people to have their say on this important issue, with the Government inviting submissions on the Issues Paper until Friday, 5 April 2019.
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At the end of November 2018 the Ministry of Business, Innovation and Employment (MBIE) released an Issues Paper focused on reviewing the Copyright Act 1994. The Issues Paper is extensive, and raises questions around all aspects of the Copyright Act. A copy can be found here.
The purpose of the review is to consider what the problems are with the Copyright Act and how they might be addressed. In the Issues Paper this is done from the perspective of five objectives that MBIE considers a copyright regime should achieve in the New Zealand context. These objectives are:
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- providing incentives for the creation and dissemination of works;
- allowing reasonable access to use by using exceptions such as fair use, adaption and consumption;
- ensuring the copyright system is effective and efficient;
- making sure New Zealand meets its international copyright obligations (and the Issues Paper outlines what these obligations are); and
- ensuring that the copyright system is consistent with the obligations under the Treaty of Waitangi.
The Issues Paper reviews the Copyright Act by first providing an outline of what copyright is, then working through each of the various topics dealt with in the legislation (the main ones being rights, exceptions, transactions and enforcement). At the end of the Issues Paper is a section seeking views on the overlap of the protection of industrial designs under both the Designs Act 1953 and the Copyright Act, and how the Copyright Act review should be coordinated so that it falls in line with policy development on the protection of Māori taonga works (ie expressions of Māori traditional knowledge, a well known example being the haka Ka Mate) arising from the Waitangi Tribunal’s WAI 262 report.
There are numerous questions asked by the Issues Paper in the course of each discussion topic, particularly on situations that are not clear cut, on which you may submit. The Issues Paper also identifies a number of known problem areas, provides views on those problems (including some initial feedback that MBIE obtained from interested parties), and invites comments. For comparison purposes, it outlines the approach taken in a number of other jurisdictions in relation to some of these problems and comments on the pros and cons of the different approaches.
In this article we discuss a few areas that we think are of most interest, particularly in relation to the intersection of copyright and technology. We also note some key points you should consider making a submission on. The article assumes a basic understanding of what is meant by copyright. If you want a quick refresh on this we suggest reading part 2 of the Issues Paper.
Qualifying Works
Under the Copyright Act, copyright arises automatically by virtue of creating a qualifying original work. In New Zealand there is no threshold as to the quality of the work, rather to be ‘original’ it must not be a copy of another work or infringe on another work’s copyright.
The threshold for originality (applied by the courts) is whether there is sufficient skill, judgement or labour involved in creating the work. However, some people argue the threshold for originality in New Zealand is too low, particularly when it comes to basic data sets. For example, a telephone book has been found to meet the standard for an original work in New Zealand, but this has not been the case in other jurisdictions.
You should consider (and submit on) whether there are any works that you use or wish to use that you do not think should qualify for copyright protection. In particular, consider this in the context of data sets or other works that are used by algorithms or artificial intelligence. On the other side of the coin, if you use artificial intelligence or other technologies to create works also consider submitting on whether those works should be protected by copyright.
Exceptions
Another aspect MBIE focuses on is whether the fair dealing exceptions within the Copyright Act allow both appropriate access to and use of creative works. It has been argued that because the fair dealing exception is applied by the courts on a case-by-case basis, a lot of parties may be put off by the uncertainty and cost of having to go to court. You should consider (and submit on) whether there are any problems or benefits with any of the current exceptions and/or whether there are any other desirable uses which you think should be included in the exceptions regime.
The Copyright Act currently includes some specific exemptions in relation to backing up, decompiling, copying or adapting for lawful use, and observing, computer programmes. While the Issues Paper does not identify any problems with these exemptions it does ask if these exceptions are working effectively or if any other exceptions are needed. You should consider if these exceptions are either too wide or too narrow in terms of your use or desired protection of computer programmes.
MBIE also asks if copyright owners should be able to limit a person’s ability to use the exceptions through contracting out. If you rely on any of the exceptions or you wish to limit the use of an exception you should make a submission on this point.
Liability Protection of Internet Service Providers
The Copyright Act limits Internet Service Providers (ISPs) liability in a prescribed number of circumstances. However, there have been significant technological advancements since the last Copyright Act review introduced this protection, and large user generated platforms like YouTube and Instagram had not fully developed at that time.
MBIE considers that the liability protection provisions may need to be reconsidered in light of the developing role of online platforms as content distributors. If your business involves technical use of copyright works to provide its services this may be an area you could submit should be extended to your type of business.
Putting Content on Creative Platforms
Social media and other creative platforms often have huge audiences which are sought after for marketing purposes. They often require their users to give open licences which allow for the owner of the platform to use the content in any way they like. No fee is paid for the licence, which MBIE notes may impact on the creators’ ability to monetise their creations.
If you use or operate such a platform, you should consider submitting on whether or not this practise is appropriate and if any rules should be introduced to regulate the practise.
Addressing Online Infringements
A regime for the infringement of copyright by individuals using peer-to-peer file sharing technologies was introduced by an amendment in 2011. This allows copyright owners to make a request to an ISP to send up to three infringement notices to an account holder of the ISP who is alleged to have breached copyright. MBIE states in the Issues Paper that it understands that this regime is no longer used by copyright owners.
MBIE also notes the rising issue of pirate websites, which are created primarily for the purposes of assisting individuals to infringe copyright, and the use of website blocking injunctions overseas.
If your business makes materials available online (whether or not you are seeing online infringement of those materials) you may wish to make submissions on this topic, particularly what remedies you think should be available to address such infringements.
Having your say
MBIE requests your views on the Copyright Act in order to improve their understanding of how the copyright regime operates in practice and key issues or opportunities for change. Copyright affects all of us, and arises out of many ordinary everyday activities, so it is important that you have your say. The due date for submissions is Friday 5 April 2019.
Please contact the authors if you have any queries about this article or area of law.
Partner Graeme Crombie is a skilled corporate and commercial lawyer with over 20 years’ experience acting for clients in the public and private sectors. His expertise is in corporate advisory, commercial contracts, tendering and public sector compliance. Graeme has a particular specialty in technology (including telecommunications); advising on all types of technology contracts, licensing arrangements, website terms of business, privacy policies, and data protection and cyber-security issues. He also advises on regulatory compliance when using technology, such as electronic communications in marketing, electronic signatures on documents, and radio spectrum licensing. Graeme’s clients relish the opportunity to involve him in their projects to achieve their commercial outcomes by focusing on solutions and identifying ways to mitigate risks. Graeme has acted for suppliers and customers, large corporates, Government departments, Crown Entities, SMEs and startups. Projects Graeme has worked on include technologies to develop new capabilities, ERP and Internet of Things implementations, mobile apps and using drones. He has also been fortunate enough to work on some of New Zealand’s most exciting technology projects. Graeme is ranked in Chambers Global as a leading individual in technology since 2008. Contact Graeme at graeme.crombie@laneneave.co.nz or connect via LinkedIn.
Partner Anna Ryan specialises in corporate and commercial law and is the principal contact for Lane Neave’s competition law practice. She routinely advises on the Commerce Act, Fair Trading Act and all aspects of competition and consumer law. Anna is also a principal contact for Lane Neave’s intellectual property team and acts on a wide range of trade mark, copyright and other intellectual property matters. Anna holds a Masters Degree from the University of Melbourne in Competition and Consumer Protection Law, and sits on the Advisory Board of the Competition Law and Policy Institute of New Zealand. Anna is also a trustee of the Canterbury Society of Arts, which operates CoCA, The Centre of Contemporary Art. Contact Anna at anna.ryan@laneneave.co.nz or connect via LinkedIn.
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