A number of recent high profile cases demonstrate the tension between traditional principles of copyright law and the technology revolution. Examples such as Napster, and the case against it, demonstrate the power of the Internet as a means of efficiently disseminating material, but also as a challenge to the property rights which law makers have afforded the products of intellectual innovation.

The New Zealand Government has recognised the need to keep intellectual property legislation in step with technological change, by the recent release of a discussion paper reviewing the impact of digital technology on copyright law. Although the current Copyright Act 1994 is only some seven years old, rapid advances in the development and uses of information technology, particularly the Internet, have meant that a policy rethink is required.

The Ministry of Economic Development's (MED's) discussion paper notes that the two major objectives of copyright legislation are to:

- provide an incentive for authors and entrepreneurs to create, develop, and disseminate copyright works; and

- ensure a proper balance between the protection provided to authors and owners of copyright and the ability of users to access copyright.

Although not everyone agrees how copyright law should be reformed to meet these objectives, or how the balance can be most appropriately struck, it is widely recognised that reform is necessary given the challenges that the technology age poses to the law of copyright.

The purpose of the discussion paper is to inform interested parties about issues concerning copyright and digital technology. It also considers issues raised by international standardsembodied in the WIPO Copyright Treaty 1996 and the WIPO Performances and Phonograms Treaty 1996. There have also been recent reforms to address some of these issues in other jurisdictions, notably Australia and the European Union.

The MED's paper discusses the following key copyright issues that arise from the use of digital technologies and the Internet:

- the right to copy copyright works;

- the right to communicate copyright works to the public, including:

- transmission of works to audiences over the Internet (including the webcasting of audio and visual material);

- making works available on the Internet; and

- retransmission of free-to-air broadcasts using digital technology;

- the liability of ISPs for copyright infringement relating to the activities of their subscribers;

- the legal protection of:
- technological protection measures: (e.g. encryption technology including software, hardware, and access codes, to prevent or track unauthorised copying and use of or access to copyright material); and
- electronic rights management information (that identifies content protected by copyright and the terms and conditions of use);
- the legal protection of electronic databases; and
- whether any new exceptions or permitted uses are required to protect the interests of the users of copyright works and the wider public interest in the digital age.

The MED has invited all interested parties to make submissions on whether and how the Copyright Act 1994 should be amended to address any of these issues. Although the issues identified by the MED are at the heart of much of the current debate, the MED also welcomes submissions that identify other issues or potential options that arise as a result of digital technology.

Anyone wanting to have a say on these issues would be well advised to consider making a formal submission to the MED. It is generally our experience that the most impact can be had on the law making process at this early stage of policy formulation.

The closing date for submissions is Friday 12 October 2001.

Important Facts:

It is widely recognised that reform is necessary given the challenges that the technology age poses to the law of copyright.

This is a general summary only and should not be taken as a substitute for specific advice.

x-tech group Simpson Grierson Web site: x-tech group Simpson Grierson

Contacts

Michael Sage, Partner, michael.sage@simpsongrierson.com
Earl Gray, Partner, earl.gray@simpsongrierson.com
Jan Kelly, Partner, jan.kelly@simpsongrieson.com
Lianne Young, Senior Associate, lianne.young@simpsongrierson.com

September 2001
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