ITP Techblog

It's been a decade since the Copyright Act 1994 (the Act) was last updated, and during this time, we have seen so much change - New Zealand's technology and media sectors have both blossomed and we are constantly finding new ways to consume, collect and exploit information.  As a result, copyright is touching more and more New Zealand businesses. So when the Minister of Commerce and Consumer Affairs announced a review of the Act earlier this year, the announcement was widely welcomed.

The review is a great opportunity to make sure the law is up to date with new technologies, while still seeking to maintain balance between creators and users of copyright works, ensure the system works efficiently, and keep New Zealand in line with its international obligations.

The objectives of the review, as described in the terms of reference document, are to:

• Assess the performance of the Act against the objectives of New Zealand's copyright regime
• Identify barriers to achieving the objectives of New Zealand's copyright regime, and the level of impact that these barriers have
• Formulate a preferred approach to addressing these issues - including amendments to the Act, and the commissioning of further work on any other regulatory or non-regulatory options that are identified.

What is likely to be on the agenda? 

The full scope of the review is yet to be announced, but we expect that two of the big issues discussed will be the possibility of introducing a broad 'fair use' defence, and a review of the current safe harbour provisions for Internet Service Providers (ISPs).

'Fair use' is a broad defence to copyright infringement that currently applies in the US and a handful of other jurisdictions. Supported by large-scale users of third party copyright works, a new 'fair use' system would arguably provide greater leniency and flexibility for the use of otherwise copyright protected works.  Fair use is a truly technologically-neutral defence and does not need updating as we find new ways of exploiting existing copyright.

However, creators of copyright works are likely to argue that the US regime carries less certainty than the current exceptions-based approach adopted in New Zealand, the UK and most other common law countries. A question mark hangs over how well 'fair use' could work in a small non-litigious country like New Zealand (which has only had two fair dealing cases in the last ten years), because it relies heavily on case law to help develop the boundaries of the defence and adapt it to new situations.

This question of a 'fair use' defence has already been broached across the Tasman by the Australian Productivity Commissioner. The Commissioner, with surprising finality, concluded that Australia's copyright laws "are skewed too far in favour of copyright owners…" and proposed introducing a 'fair use' exception from copyright infringement in Australia. However, the Australian Government has not directly supported the proposal, instead saying that the issue is complex and that it intends to "publicly consult on more flexible copyright exceptions" instead.    

It is yet to be seen how seriously the 'fair-use' issue will be addressed back on home shores. If Australia's experience is anything to go by, it will be hotly debated on both sides.  

The 'safe harbour' provisions in the Act provide ISPs (including online hosts and other intermediaries such as YouTube, Facebook and eBay) with safe harbours to limit their liability, where they are just an innocent conduit for infringing activities of third parties. MBIE's Creative Sector Study reported a growing level of frustration within the ICT sector of safe harbour regimes and the lack of effectiveness of current procedures for dealing with piracy, particularly internet streaming. Such frustration is not universal however, with proponents of internet freedom arguing that tighter controls are not the answer, and that problems with piracy are best dealt with by improving access to content. 

Back when implementing the Trans-Pacific Partnership Agreement (TPPA) was initially on the cards, New Zealand was required to make a number of changes to the Act to meet its obligations under the TPPA. Interestingly, a number of those obligations are now off the cards given the recently agreed and newly-titled Comprehensive and Progressive Trans-Pacific Partnership, including the requirement to tighten laws around the circumvention of technological protection measures and the controversial extension of copyright protection to 70 years after the author's death. It will be interesting to see whether these changes are now dropped, or whether they are brought into force as part of the review - it may depend on the New Zealand Government's wider trade agenda.   

What's next?

MBIE originally announced that it will release a broad issues paper for public consultation in early 2018, which will include a number of questions for public input.  In the meantime, you can subscribe to MBIE's mailing list if you are interested in receiving updates on the review.

Amy Ryburn and her team (Allan Yeoman, Philip Wood, Damien Steel-Baker, Keri Johansson and Renee Stiles) form law firm Buddle Findlay's ICT team. This piece first appeared in the Buddle Findlay newsletter.