Copyright Amendment Bill, Analysis and commentary
Copyright (New Technologies and Performers' Rights) Amendment Bill
This bill makes a number of overdue modifications to copyright law, notably in the area of reaffirming the rights regarding decompilation, and introducing the idea of "transient copies" to prevent copying of audio data via memory or system bus from prompting copyright infringement.
However, there are a number of serious questions raised by other sections, most controversially the introduction of a penalty for bypassing, or providing the means to bypass a TPM (Technological Protection Measure) on a copyrighted work.
TPMs
This is in many ways similar to the concept introduced by the US DMCA. In essence, the problem is one of ease of copying, and expertise:
The DMCA-style solution to this, is to make the distribution of a "TPM spoiling device" illegal. The penalty for distributing one is then said to be equivalent to having actually performed the copyright infringement yourself.
The simple solution is, however, put in serious doubt by a number of questions:
The predictable outcome is the least desirable environment. Works will be released protected by the same TPM used in every other legal environment, maximally restrictive. Remedies to permit the exercise of the rights to record for the purposes of format-shifting, time shifting, adding subtitles or making complaints will be difficult, time consuming and often unavailable.
Single Copies
A oft-used phrase within the Amendment (and probably the Act itself), is the idea of "1 copy". You are permitted, for example, to make "1 copy" of a recording for every playback device you own:
However, this concept of "1 copy" takes no account of the true nature of information as used in computer systems.
Digital data is regularly backed up. It is certain that, were I to legitimately receive a sound file to my gmail email address, there would now be at least 3 redundant copies of the data. Should I fail to delete my email subsequent to downloading the attached file to my computer, there would now be 4. If I back up my computer once, 5, if I perform monthly full backups, one additional copy per month.
A similar clause requiring timely deletion under certain circumstances needs further consideration, some methods of backup (to write-only devices) do not permit the removal of individual pieces of data after an elapsed time. Nor may the owner be in control of the process that performs this backup, corporate and educational environments often have centrally managed backup programs, and some operating systems maintain backups of data automatically without the users knowledge.
Worse, the right to maintain "1 copy" is under a "sunset" clause:
No explanation as to why this might be there is offered, nor is it clear why, with the overall vision of "creating certainty" about digital copying, such a significant change in rights may happen in such a short time. Should this clause silently expire after two years, I may find myself suddenly in violation despite previously having been perfectly legal - not a situation to inspire certainty or confidence.
Conclusion
While the idea of helping copyright holders maintain their rights in the face of a new form of information that makes duplication so trivial is well intentioned, the fundamental disconnect between our notion of "property" and the true nature of digitally transmitted information requires much more robust approach than has so far been proposed.
The DMCA has demonstrated how dangerous it can be to attempt to legislate physical property laws onto digital copies without careful consideration. New Zealand can learn from these mistakes.
It is absolutely clear that if copyright holds rights are to be maintained by supporting TPMs, that citizens rights must be similarly upheld by creating legal obligations on the part of copyright holders to provide unprotected copies of digital content to an organisation tasked with aiding New Zealand citizens in exercising their rights under the Act. This cannot be a half measure, funding must be provided, and penalties must be able to be exercised against copyright holders who fail to provide the unprotected copies in a timely fashion.
There is no question that digital works will become a large component of our cultural history in the future, it must not be the case that these works become slowly inaccessible to us over time due to TPMs operating to prevent us from exercising our rights.
The precise nature of the organisational methods to do this I'll leave for another entry, but it has to be done. The Amendment as it stands should not go ahead until these issues are addressed.
Thanks to Andrew Garrett for the heads-up.
This bill makes a number of overdue modifications to copyright law, notably in the area of reaffirming the rights regarding decompilation, and introducing the idea of "transient copies" to prevent copying of audio data via memory or system bus from prompting copyright infringement.
However, there are a number of serious questions raised by other sections, most controversially the introduction of a penalty for bypassing, or providing the means to bypass a TPM (Technological Protection Measure) on a copyrighted work.
TPMs
This is in many ways similar to the concept introduced by the US DMCA. In essence, the problem is one of ease of copying, and expertise:
- Digital works are trivial to duplicate, and so the normal barriers to duplication on a physical work no longer exist, and therefore (presumably) people will illegally duplicate copyright works more.
- While technical measures can be put in place to prevent this, there are experts who are capable of creating a digital work that can bypass these measures. Due to (1), these "TPM spoiling devices" will rapidly be adopted by the original works market, thus defeating the barrier and leaving us at square one.
The DMCA-style solution to this, is to make the distribution of a "TPM spoiling device" illegal. The penalty for distributing one is then said to be equivalent to having actually performed the copyright infringement yourself.
The simple solution is, however, put in serious doubt by a number of questions:
- While the Act permits the copying of a work under a number of reasonable circumstances, a TPM must prevent or restrict copying regardless of its legality, since it is not possible to determine the legality of the act of copying itself in software.
- Significant questions are raised as what precisely constitutes a TPM. While in a legislation-free environment a TPM must be effective in order to be useful, the addition of legislation permits a copyright holder to do little more than the bare minimum to qualify as a "protected work", and then use the legal system to make infringement claims against citizens who stumble upon the trivial methods to bypass the TPM and talk about it. This is a step *below* what we have now, where at least the only person subject to legal proceedings is the actual infringer.
- While the Amendment provides two remedies of appeal to the copyright holder, and appeal to a "qualified" party to remove TPM on a work for the purposes of fulfilling a right given by the Act, there is no motivation for the copyright holder to actually fulfill this obligation - they rarely have any better means of determining the legality of the action than the TPM itself does - and no direct provision for an organisation dedicated to the removal of TPMs so that citizens can exercise their rights is made, instead the responsibility is placed on the shoulders of libraries and educational establishments, neither of whom will see this as their core responsibility.
The predictable outcome is the least desirable environment. Works will be released protected by the same TPM used in every other legal environment, maximally restrictive. Remedies to permit the exercise of the rights to record for the purposes of format-shifting, time shifting, adding subtitles or making complaints will be difficult, time consuming and often unavailable.
Single Copies
A oft-used phrase within the Amendment (and probably the Act itself), is the idea of "1 copy". You are permitted, for example, to make "1 copy" of a recording for every playback device you own:
Clause 44, "New section 81A (clause 44) allows copying of a sound recording, subject to a number of conditions. If those conditions are satisfied, the copying of the sound recording does not infringe copyright in the sound recording or in a literary or musical work contained in it. The conditions are set out in new section 81A(1)(a) to (g) and include the conditions that the copy is made by the owner of the sound recording, that it is made for that person's private and domestic use, and that no more than 1 copy is made for each type of device for playing sound recordings that is owned by the owner of the sound recording."
However, this concept of "1 copy" takes no account of the true nature of information as used in computer systems.
Digital data is regularly backed up. It is certain that, were I to legitimately receive a sound file to my gmail email address, there would now be at least 3 redundant copies of the data. Should I fail to delete my email subsequent to downloading the attached file to my computer, there would now be 4. If I back up my computer once, 5, if I perform monthly full backups, one additional copy per month.
A similar clause requiring timely deletion under certain circumstances needs further consideration, some methods of backup (to write-only devices) do not permit the removal of individual pieces of data after an elapsed time. Nor may the owner be in control of the process that performs this backup, corporate and educational environments often have centrally managed backup programs, and some operating systems maintain backups of data automatically without the users knowledge.
Worse, the right to maintain "1 copy" is under a "sunset" clause:
There is a sunset clause attached to new section 81A(1)---under new section 81A(3) it expires after 2 years after the date on which it comes into force, unless renewed by the Governor-General by Order in Council
No explanation as to why this might be there is offered, nor is it clear why, with the overall vision of "creating certainty" about digital copying, such a significant change in rights may happen in such a short time. Should this clause silently expire after two years, I may find myself suddenly in violation despite previously having been perfectly legal - not a situation to inspire certainty or confidence.
Conclusion
While the idea of helping copyright holders maintain their rights in the face of a new form of information that makes duplication so trivial is well intentioned, the fundamental disconnect between our notion of "property" and the true nature of digitally transmitted information requires much more robust approach than has so far been proposed.
The DMCA has demonstrated how dangerous it can be to attempt to legislate physical property laws onto digital copies without careful consideration. New Zealand can learn from these mistakes.
It is absolutely clear that if copyright holds rights are to be maintained by supporting TPMs, that citizens rights must be similarly upheld by creating legal obligations on the part of copyright holders to provide unprotected copies of digital content to an organisation tasked with aiding New Zealand citizens in exercising their rights under the Act. This cannot be a half measure, funding must be provided, and penalties must be able to be exercised against copyright holders who fail to provide the unprotected copies in a timely fashion.
There is no question that digital works will become a large component of our cultural history in the future, it must not be the case that these works become slowly inaccessible to us over time due to TPMs operating to prevent us from exercising our rights.
The precise nature of the organisational methods to do this I'll leave for another entry, but it has to be done. The Amendment as it stands should not go ahead until these issues are addressed.
Thanks to Andrew Garrett for the heads-up.
posted by PhiRatE at
12:24 AM
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