[A2k] Fwd: [The 1709 Blog] New Zealand Copyright Act under review

Manon Ress manon.ress at keionline.org
Tue Jan 29 23:08:49 PST 2019

I do not endorse the paper but I found interesting that some see fair use
as a negative for civil society. The questions are also quite surprising.

---------- Forwarded message ---------
From: Eleonora Rosati <eleonorarosati at gmail.com>
Date: Wed, Jan 30, 2019, 1:57 PM
Subject: [The 1709 Blog] New Zealand Copyright Act under review
To: <1709-copyright-blog at googlegroups.com>

New Zealand Copyright Act under review
The 1709 Blog is delighted to host the following contribution by 1709 Blog
friend *Ken Moon <https://www.ajpark.com/about-us/people/ken-moon/>* (AJ
Park Law, Auckland) concerning the ongoing review of the New Zealand
Copyright Act.

Here’s what Ken writes:


The New Zealand Copyright Act 1994 is now under review. The review got
underway in earnest with the November release of a 126-page *Issues Paper
the Ministry of Business, Innovation & Employment (MBIE). This review is of
the whole of the Act, although internet issues are pre-eminent.

The MBIE Issues Paper identifies potential issues upon which it seeks
from interested parties*
MBIE appreciates that the Act may already adequately address some issues it
has identified and is happy to receive submissions arguing for no change.

*Adherence to international copyright treaties *
Over the years, New Zealand has not been good at amending its copyright
legislation to ratify international copyright treaties or conventions.
However, as is noted in the Issues Paper, under the Comprehensive and
Progressive Agreement for Trans-Pacific Partnership (CPTPP), New Zealand is
obliged to make amendments to incorporate many of the provisions in the IP
Chapter of the TPP and this process is already underway. Some of these
require implementation of terms of the 1996 WIPO Performers and Phonograms
Treaty (WPPT) which addressed internet issues, particularly for performers
who had previously been side-lined. However, there are other provisions of
the WPPT which will need to be addressed in the comprehensive review, such
as performer remuneration for broadcasts and communications of their

*Some of the Identified Issues *
*Fair use and exceptions to copyright infringement *
Currently, the Act ensures certain listed non-commercial activities are not
infringements of copyright, including those categorised as ‘fair dealing’.
The Act also makes specific exceptions for the education industry and
libraries. This is the traditional British approach.

But should a broader US fair use defence be adopted in place of fair
dealing? Naturally social media advocates favour this. However, fair use is
somewhat subjective and reduces the certainty of legal opinions on what is
infringement and what is not.

As to the adequacy of the existing statutory exceptions to infringement, it
is time to look at whether the reproduction of parts of a work for the
purposes of satire should be excepted. Also, should exceptions for public
playing of works and format-shifting be more extensive? On the other hand,
is the current exception for reproducing artistic works on public display,
such as sculptures, unnecessarily broad. An example being applying an image
of a sculpture to t-shirts without obtaining a licence from the sculptor
and paying royalties.

*Internet-related issues *

   - Should a website link to infringing content stored on another website
   constitute copyright infringement as under EU law?
   - MBIE questions whether content streaming should be treated the same as
   broadcasting under the existing right to communicate. But many will argue
   that the particular transmission technology is irrelevant from a creator’s
   point of view.
   - New Zealand is the only country that has ‘communication works’
   specified as a work in which copyright subsists. This makes broadcasts and
   internet streams to the public copyright works in themselves, in addition
   to any copyright in the content. Thus, retransmission may constitute
   infringement. This was the most far-sighted of all the 2008 ‘internet
   amendments’ made to the Act. However, MBIE believes this is problematic
   because it is hard to know who might constitute the ‘public’. Strangely,
   MBIE does not see this as a problem with the communication right.
   - User-generated content on social media platforms, even if it is
   supposedly merely ‘inspired’ by existing content, can amount to copyright
   infringement if it reproduces a substantial part of that content. Should
   this be the case or should there be exceptions?
   - Currently, section 43A of the Act provides an exemption from
   infringement for transient reproduction of a work if it is an integral part
   of the technological process for communicating the work. This has
   application to streaming technology, but has been interpreted by a New
   Zealand court in a more restrictive manner than has been the case in the
   UK. Clarification seems called for even if all that is done is inserting a
   definition of ‘transient’.

*Software-related issues *

   - The Act does not allow for a copyright owner to renounce their
   copyright. Some software developers (and users) have wished for this
   instead of retaining copyright and adopting licensing schemes of the open
   source or creative commons types. Should renunciation of copyright be
   provided for?
   - The Act currently already provides specific exceptions to infringement
   for computer programs such as:
      - decompilation of a program in order to write an interoperable
      - copying or adapting a program to allow for continued use and for
      correcting errors
      - studying the functioning of the program to determine the ideas that
      underlie it while loading, displaying, running, transmitting, or storing
      the program.

These were radical enough when introduced in the 2008 amendments, but MBIE
is asking if there should be further exceptions to program infringement.

*Enforcement of copyright *

   - MBIE asks whether a voluntary register be made available, as in
   Canada, to simplify identification of copyright owners. But it is
   questionable whether there have been injustices in past New Zealand
   copyright cases to justify the costs of running such a register of
   - Currently legal action for copyright infringement can only be taken by
   copyright owners or their exclusive licensees. Should non-exclusive
   licensees be able to sue?
   - Should the Act provide a remedy for groundless threats of copyright
   infringement as is the case for patents?

*Relationship between copyright and registered design protection *
In New Zealand the Copyright Act protects three-dimensional copying of
functional products via the copyright which subsists in the design drawings
of the product – as used to be the case under UK law. MBIE raises the old
question of whether the potential overlap between copyright protection for
product design and protection by the Designs Act should be permitted. The
fear of New Zealand protection providing greater protection for foreign
designers compared to what New Zealand designers may receive in some other
countries emerges. Of course, New Zealand designers are accorded
unregistered design rights in European Union countries, even if not in the

*Due date for submissions to be made *
Submissions on the Issues Paper can be made to MBIE until 5.00pm on *5
April 2019*. An *online portal*
<https://www.research.net/r/CopyrightIssuesPaperSubmissionForm> can be used
for this. Submissions will be published, although confidentiality can be
claimed for some content.”


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