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:
- 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.
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.
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 get in touch with the team at Lane Neave if you would like assistance to make a submission to MBIE.
MBIE is also holding a public meeting in Christchurch on the Issues Paper on 12 February. For more information on this please see MBIE’s workshop page on its website.
Business Law team
If you need any assistance do not hesitate to get in touch with the Business Law team at Lane Neave.
Gerard Dale, Claire Evans, Graeme Crombie, Evelyn Jones, Anna Ryan, Joelle Grace, Peter Orpin, Ellen Sewell, Matt Tolan, Carlo Wan, Kristina Sutherland, Jacob Nutt, Whitney Moore, Alex Stone, Ben Cooper, Lisa Catto