Post has presented the list of noted shortfalls in the draft legislation to Minister Tizard (Consumer Affairs), Minister Goff (Trade) and to officials within the Ministry of Economic Development, the agency primarily responsible for drafting legislation and monitoring IP enforcement. Post remains engaged with Bronwyn Turley, Senior MED Policy Advisor for IP issues to maintain a dialogue to address the needed technical corrections.
The copyright bill passed in April 2008 and took effect later that year. In a March 2009 cable, the U.S. embassy recommended that New Zealand not be included on the Special 301 list arguing it would be counterproductive. That recommendation is striking when compared to the regular placement of Canada on the list, despite very similar laws. In fact, New Zealand’s digital lock rules are described in the cable as follows:
The provisions relating to technological protection measures (TPMs) remain largely unchanged in the bill. The Act as implemented reflects New Zealand’s concern that TPMs should not be protected to the extent that they restrict acts which are seen as not protected by copyright law. The provisions of the Act have therefore been drafted to ensure that access to a work for non-infringing purposes, including the exercise of a permitted act, is retained.
This confirms that New Zealand’s copyright law allows for circumvention for non-infringing purposes – much like many groups have called for under Bill C-32 – with no objections from the U.S. under the Special 301 system.
An earlier cable similarly recommends not including New Zealand on the Special 301 list despite the fact that NZ had not ratified the WIPO Internet treaties (Canada has been placed on the highest list for the same thing). The cable is notable for the objection to a proposed format shifting provision, similar to that found in Bill C-32 and under U.S. fair use. It argues:
these exceptions to copyright protection would send the wrong message to consumers and undermine efforts to curb unauthorized copying of CDs in New Zealand. They would cost the industry in revenue and profits and discourage innovation.
In other words, fair use works in the U.S., but not for other countries.
The U.S. involvement in New Zealand’s ISP liability provisions, which included regulations for terminating subscriber access (three strikes) also comes out in the cables. In an April 2009 cable, the U.S. notes the decision to scrap the approach due to public opposition. The U.S. is anxious to bring the provisions back, proposing regular talks with government officials and offers to help drafting new provisions:
Throughout the final stages of the law’s (near) implementation, the Embassy continued to met with IPR stakeholders and GNZ officials to ascertain progress and encourage resolution. To determine how a “workable” section 92A provision can be secured, Econoff met with Rory McLeod, Director at Ministry of Economic Development (MED) with responsibility for IPR within GNZ along with Paula Wilson, Deputy Director for Trade Negotiations at MFAT, and was given assurance that the government remains committed to redrafting Section 92A.
Embassy will continue to stress with GNZ officials the need for a shorter rather than protracted timeline for the redraft and will ascertain the details of a notice and comment period for public submissions once released by GNZ. During this hiatus we’ve proposed holding DVC(s) between NZ and U.S. interlocutors to possibly help with drafting and as a public diplomacy tool to dispel public misperceptions about proper role of IPR protection.
One month later, another cable notes the U.S. offer to assist with the redraft of three strikes.
Finally, an April 2005 cable reveals the U.S. willingness to pay over NZ$500,000 (US$386,000) to fund a recording industry enforcement initiative. The project was backed by the Recording Industry Association of New Zealand (RIANZ) and the Australasian Mechanical Copyright Owners Society (AMCOS). Performance metrics include:
The project’s performance will be judged by specific milestones, including increases in the number of enforcement operations and seizures, with percentages or numerical targets re-set annually. The unit also will be measured by the number of reports it submits to the International Federation of the Phonographic Industry (IFPI) on its contributions to IP protection and enforcement methodology.
The proposed budget included four salaried positions, legal costs for investigation and prosecution, and training programs. The RIANZ still runs an anti-piracy site, but does not include disclosure about the source of funding. It certainly raises the question of whether New Zealand is aware that local enforcement initiatives have been funded by the U.S. government and whether the same thing is occurring in Canada.