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Copyright review - changes afoot post TPP?

Amy Ryburn, Buddle Findlay. 04 February 2016, 6:51 am

The Trans-Pacific Partnership Agreement (TPPA) was signed here in New Zealand earlier this month. If the US Congress approves the treaty (something that doesn't need to happen in New Zealand), the next issue is what law changes the treaty will drive in New Zealand.

For those in the tech community you may have heard some coverage of the patent/pharmaceutical implications.  Perhaps of more direct relevance to the ICT sector are:

  • The shoring up of prohibitions on removing technological protection measures on software in the Copyright Act, and
  • The extension of the normal term of copyright in works from life of the author plus 50 years to the life of the author plus 70 years.  This will align NZ copyright law with the position in Australia but the extension of copyright duration has an estimated annual cost to New Zealand of circa $55m - as users forego savings that would otherwise have been made when works came out of copyright protection.

Those changes will require amendments to the Copyright Act 1994 - however, the legislative process of making these amendments may well form part of a foreshadowed wider review of the provisions of the Act.

In 2003, with the enactment of the Copyright (New Technologies) Amendment Act 2008, the previous government agreed that the Copyright Act would be reviewed to assess its effectiveness for digital technology in five years' time.  

Cabinet later decided to put that review on hold until the TPPA negotiations were concluded. The Cabinet paper regarding the delayed review noted that: "it is likely that many of the provisions setting out exceptions to copyright are now out of date with current technology" and that this may cause high transaction costs for both owners and users of the works.  

While no date for the review has been announced (I understand that it is being preceded by the Creative Sector Study MBIE is currently undertaking), it may be back on the agenda before too long and, if so, we can therefore expect some serious analysis and discussion.  Any such review may well be significant for both technology developers and users.  

Although patenting inventions which involve computer software is technically possible in New Zealand, the most common type of IP protection for software around the world is copyright. Since a program is classified as "literary work" for copyright purposes, copyright in an application currently lasts for the life of the developer plus 50 years.  

Once legislation is enacted in New Zealand to reflect the TPPA, copyright in software will last 70 years after the end of the developer's life. While this might make sense for certain types of literary and artistic works, given the economic life of an application is comparatively brief, it could effectively mean that an application is protected by copyright well beyond the period it is useable and valuable.  

Given the strengthening of copyright owner protections, it may be time to revisit the New Zealand act's balance with the rights of copyright users.  If this change in copyright duration is to align New Zealand with the US and the EU, arguably New Zealand should also consider introducing the pro-user "fair use" rights that US copyright users enjoy. "Fair use" exceptions are (often to users' surprise) considerably broader than the very narrow exceptions to copyright infringement found in the current "fair dealing" exceptions in New Zealand's Copyright Act.  "Fair use" rights haven't yet been adopted across the Tasman. Despite the fact the Australian Law Reform Commission recommended adopting a broad "fair use" exception in 2013, the draft amendments to the Australian Copyright Act 1968 released for comment before Christmas provide for a new fair dealing exception to copyright infringement (relating to enabling a disabled person to access copyright material) but do not introduce a wider "fair use" exception.

Keep an eye on the MBIE website for news on New Zealand's copyright review this year.


Amy Ryburn is a partner with law firm Buddle Findlay.


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