New Zealand: Meeting the digital copyright challenge

Wednesday 23rd April 2008

Commentary on proposed changes to the Copyright Act 1994

The New Zealand government is proposing significant amendments to the Copyright Act 1994 (the Act) with the Copyright (New Technologies and Performer’s Rights) Amendment Bill (the Bill).
In particular the Bill:

  • provides an exception to infringement for transient copying (for example, by automatic computer or communications network processes);
  • amends existing broadcast rights to a technology-neutral right of communication to the public;
  • limits the liability of internet service providers for infringements by those using their services;
  • expands the provisions relating to technological protection measures and their circumvention;
  • provides protection for electronic rights management information (for example, copyright notices, the author’s identity and terms of use);
  • amends/clarifies the existing permitted acts or fair-dealing exceptions to infringement, such as library, archiving, research and educational use;
  • and introduces new exceptions by allowing so-called format-shifting of sound recordings for private and domestic use (for example, transferring songs from CD to MP3 format), and allowing reverse engineering of software for decompilation and error correction purposes.

The proposed amendments highlight the inherent conflict between the interests of owners and users in the Copyright Act, and a number of them may not sit well with copyright owners.
In particular, software owners are unlikely to want anyone to be able to reverse engineer their software for any reason, particularly where there is a risk that this could lead to the software being copied.
The amendments will prevent copyright owners from excluding by contract the right to reverse engineer software. This removes a large part of the legal protection for software in New Zealand and conflicts with both UK and US copyright law. If enacted, this provision could effectively discourage international software developers and companies from bringing their products to market in New Zealand.
This article was published in Managing Intellectual Property in March 2007.

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