On the 23rd, Parliament had more debate on the second reading of the Copyright (New Technologies and Performers’ Rights) Amendment Bill. This Bill has been improved by the Select Committee, but there are still significant areas of concern:
The best speech concerning some of the weaknesses still in the Bill, comes from Nandor Tanczos in his second reading speech.
Let us begin with the issue of format shifting — the copying of works to different formats for more convenient or preferable use. A typical example might be ripping a CD to a computer or an MP3 player. The Select Committee removed the sunset clause from the fair use provisions, and we welcome that. It made no sense to recognise for the first time a right to, for example, copy a track from a CD onto a device but then have only that right last for a couple of years.
However, the Select Committee countered that move with some retrogressive steps. … In addition, the committee has retained provisions that unreasonably restrict time shifting and has clarified that copyright owners can opt out of fair use provisions. Presumably, that might mean just putting a sticker on the cover of a CD. We would find that unacceptable.
Lastly, the provision still excludes video, because in the words of the committee: “… format-shifting of music for private and domestic use is widespread, while format-shifting of other types of copyrighted works is not.” Maybe it is not so widespread as to have reached the ears of the members of the committee, but even John Key is now on YouTube. Not that I expect any but the most loyal or masochistic to be watching him on a portable, but the point is that the assumptions that the committee used in making that determination simply do not hold in the modern world. We believe that the public has been let down by format shifting in this area and, like other ill-conceived prohibitions, they will simply ignore it.
It is hard to claim a law is based on solid principle when you allow audio format-shifting and disallow video format-shifting. The principle is the same – you have purchased a licence and a copy of a “work” and why should you be forced to buy multiple copies if you have multiple viewing devices. If you have a video Ipod, why can you not legally watch a movie on it, if you legally purchased the DVD?
However, we are extremely concerned about clause 92C and the retention of the notice and takedown regime previously referred to by the Minister in the second reading in relation to claims of breach of copyright. Under the bill, if an Internet service provider is informed about a claimed breach of copyright in relation to material it stores, then it is liable if it does not “as soon possible after becoming aware … of facts or circumstances that make it apparent that the material is likely to infringe copyright in the work, delete the material or prevent access to it”.
I think it is important that members note the words “likely to infringe”, because an internet service provider, in practice, will interpret this as “might possibly infringe a copyright work”, because it simply cannot afford to take the risk. This sort of measure can easily be abused — and has been abused in other jurisdictions. The recent case of Solid Energy attempting to injunct a satirical annual report put together by opponents of its Happy Valley coal mine is a case in point. Under this provision, the internet service provider would have had to remove the material immediately Solid Energy complained, even though the court in that case ended up finding substantially in favour of the defendants.
The Green Party would much prefer a notice provision whereby notification of a claim of breach of copyright would require the internet service provider to notify the person responsible for the material alleged to be in breach. In most cases, the person will either admit guilt or simply fail to respond. Both of those examples would lead to the immediate removal of the material. It would be only a small percentage that would contest the claim, and the matter could then be adjudicated in an impartial manner. We believe that this approach would provide fair protection to copyright holders while also protecting legitimate use, or at least allow claims to be contested. The current notice and take-down provision, even with the right to sue for unjustified proceedings, does not do that, especially in relation to cases where there is a reasonable argument to be made in either direction.
And indeed Nandor highlights the problems with a notice and takedown regime. We have seen this abused in the United States and in other countries. The Church of Scientology is famous, for example, for its campaign against Internet users who discuss or criticise Scientology “secrets”.
No doubt at the Committee of the House stage, there will be amendments put up to fix some of these flaws. It would be nice if these were given due consideration by all the parties. I mean really, do you want to vote against an amedment that would allow copying a legally purchased DVD to a Video Ipod?Tags: Internet