New Zealand’s Digital Copyright Law Demonstrates Anti-Circumvention Flexibility

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?


  1. Destiny
    Creativity is hindered by abuse of content owners greed. The end result will be that the economies of governments with least restrictive copyright laws will become the ones who capitalize most on uses they determine to be fair use.
    While the large content owners are busy lobbying and having their way with the governments which help them promote censorship through copyright abuse, these governments will eventually recognize this and be forced to change because of the detrimental effect on their ability to compete globally.

  2. Yes, far from perfect
    The format shifting provision sounds like it could be OK. Perhaps the legislators have some basic understanding, and maybe even experience with, things like audio cassetes, and hence by extension iPods etc. Don’t laugh. Personal experience really makes a difference to comprehension. However, when it comes to the internet it looks like we may have a different story here. Can someone explain how it would be possible for ISPs to be “…statutorily protected against liability for the infringing activities of their users.” and yet be “required to establish a policy for terminating “repeat infringers”? It doesn’t look like that one is going to work out in reality.

  3. Darryl Moore says:

    “qualifed person” must include media o
    I would strongly object to the idea that I should have to enlist the services of a ‘qualified’ expert, in order to exercise my fair use rights. If I own the media, then that alone should qualify me to circumvent any TPM found upon it.

    This is still an unjustified encroachment upon individual private property rights.

  4. You only need an expert if you can’t do it yourself, so this is actually helpful, not an encroachment.

    I don’t see why this is characterized by Michael as not great. Granted it doesn’t abolish copyright.

  5. The future of internet
    I need to read the news of one of my favorite show. Anybody knows how to “circunvent” this one?

    Access to this site is restricted.

    If you are outside the UK you will not be able to use for rights reasons.

    Is this the future of internet?

  6. Joel Brunetti says:

    Circumvention for Permitted Acts
    This is amazing. It could mean the potential end to the practicality of copy protection.

    Imagine this:
    You purchase a DVD.
    You want to format shift, ask the DVD copyright owner to remove the content protection.

    Get your friends, family, everybody to do the same.

    I don’t know how much of a critical mass it may take but at some point it may no longer be economically viable to use content protection if a new department must be created and maintained to turn the copy protection off.

  7. Time shifting
    Nice to see they incorporated a “time shifting” provision. Makes using a PVR legal.

  8. Coopyright Does Protect GREED
    You know I think most people are getting quite weary of this never-ending debate about copyright reform that seems to care a LOT more about preserving profit than protecting the original work.

    Lets be perfectly honest here. What the WTO, WIPO and sponsoring nations are really talking about is profit protection NOT content protection!

    “The primary objective of copyright is not to reward the labor of authors, but [t]o promote the Progress of Science and useful Arts.” “To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.”

    — US Supreme Court Justice Sandra Day O’Connor

  9. wvhillbilly says:

    Copyright entanglement
    One of the things I find most annoying about US copyright law is the requirement for one to clear copyrights with the copyhright owners on every copyrighted thing that appears or is audible, no matter how incidentally, on anything intended for distribution. There have been documentaries that had to be abandoned because of the prohibitive cost of clearing copyrights (thousands of dollars per copyright) on things that appeared incidentally in the film. Another had to have a significant part cut out because of a copyrighted cell phone ring tone that was accidentally recorded, because of the exorbitant price the copyright owner demanded for it appearing in the film. And a video of a dancing baby received repeated takedown notices on YouTube because a copyrighted tune could be heard playing very faintly in the background, almost too softly to be even recognizable.

    And what is copyrightable and most likely copyrighted in the USA today? Almost anything, even buildings! So I suppose if you took a photo of your city’s skyline and wanted to distribute it, you’d have to clear copyrights on every building in the photo, and pay royalties based on the value of the buildings ($millions per each building?) to sell the photos.

    How stupid!

  10. wvhillbilly, surely this is argument in favor of tariffs and copyright licensing? Then you could pre-clear everything

  11. yah isnt great at all says:

    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.

    THE ABOVE makes the whole law useless to innovation.
    GOOD one less country that will be in the innovation race.

  12. heres my thoughts says:

    2006 MPAA STUDY
    a new york times article at bottom of the page states that in may 2006 2.3 billion was lost to online piracy

    so taking that as a measure of the USA. that would mean
    we only need a sac measure of 1$ for movies and 25cents for music
    Have you taken the red pill?

  13. URL for ABOVE
    [ link ]

  14. No, that’s what was LOST, and it doesn’t include actual sales

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