New Zealand passed its digital copyright law this week, drawing the ire of the technology community and the blogosphere. While the bill isn't great, many of the provisions are far better than what Industry Minister Jim Prentice may have in mind for Canada including format and time shifting provisions as well as anti-circumvention provisions that are more flexible than those found in the DMCA. In fact, the anti-circumvention provisions are arguably the best of any country, since they are compliant with WIPO, limited in scope, and seek to preserve fair dealing rights.
On the anti-circumvention front, there are several things to note:
- the technological protection measures (TPMs) expressly exclude access controls such as region coding. In other words, the anti-circumvention provisions do not apply to devices that "only controls access to a work for non-infringing purposes."
- the legislation targets anti-circumvention devices, but excludes those devices that have something more than "limited commercially significant applications" other than circumventing a TPM.
- the law prohibits making, selling, distributing, advertising, or offering a circumvention device if the person "knows or has reason to believe that it will, or is likely to, be used to infringe copyright." The inclusion of a knowledge requirement creates an additional safeguard against overbroad application of the provision.
- most importantly, the law clearly permits circumvention for "permitted acts", which effectively preserves fair dealing rights (the statute also specifies the right to circumvent for encryption research). More impressive, the law includes a system to facilitate circumvention for permitted acts in the event that users are unable to circumvent a TPM themselves. In such cases, the law allows a "qualified person", which includes librarians, archivists, and educational institutions, to circumvent a TPM on behalf of a user (the user can also ask the copyright owner to unlock the work for them).
In addition to the anti-circumvention provisions, the law includes a (fairly restrictive) format shifting provision that permits copying sound recordings without compensation onto other devices (one per device, must be your own music, must retain ownership of the source copy). It also includes a time shifting provision that expressly permits television program recordings, though the recordings may only be retained for a limited period of time.
It also contains a mixed bag for Internet service providers. While ISPs are required to establish a policy for terminating "repeat infringers", the law appears to contain a fair amount of flexibility in how such a policy should be implemented. Moreover, ISPs are statutorily protected against liability for the infringing activities of their users. The law includes possible liability for storing infringing content once the ISP knows or has reason to believe that the content is infringing and it fails to take it down. The statute also clarifies that caching content is permitted. Overall, the ISP provisions are flawed, but not a total disaster.
While this bill is far from perfect, it is light years ahead of what Canadians were likely to get last December. Moreover, the combination of the recent Israel law (fair use) and the New Zealand law (flexible anti-circumvention), re-affirms that there is considerable copyright reform flexibility and that major countries around the world are taking advantage of that flexibility notwithstanding U.S. pressure. If those countries can do it, why can't Canada?