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Digital copyright law embraces iPod era

By Ruvini Rendle, Associate

First published in NBR, 11 April 2008

A Bill amending copyright law has passed its third reading in Parliament this week – making it over the last significant hurdle before it comes into effect.

The Copyright (New Technologies) Amendment Bill aims to ‘update’ our copyright laws to accommodate the digital world. As technology advances at increasing pace, the proposed legislation attempts to make copyright law ‘technology-neutral’. What does this mean for you?

The Bill has implications for educational institutions, libraries and internet service providers, but also contains amendments that relate to seemingly innocuous activities such as adding your favourite CD to a portable music player so that you can jog to the Rocky theme.

Time Shifting

Time-shifting is the term used to describe the age-old practice of recording a broadcast (such as the footy on TV) to watch at more convenient time. You have probably been doing this for years and most likely more frequently with the arrival of devices such as My Sky. With every recording you have made, you have being breaching copyright.

The legislation will permit the copying of a broadcast. However, there are a few catches:

• The recording must be made for private and domestic purposes and for the sole purpose of watching and/or listening to the broadcast at a more convenient time.
• The copy is only permitted to be made if the broadcasted programme is not available on demand (for instance, you would not be able to record a ‘Pay per view’ motion picture that is still available through your cable television provider or to record something that is available ‘on-demand’.) 
• Finally, the copy will become an infringement if it is retained longer than is necessary for viewing or listening to the recording at a more convenient time. So, it may be legal to record a rugby match showing live at 4am in the morning, but you cannot keep the copy indefinitely. The legislation does not define how long is reasonable for the purposes of viewing or listening to the recording at a more convenient time  – presumably copies of the last Rugby World Cup final are past their ‘best before’(and who would want to keep it any way!).

Format Shifting

Before the days of the ubiquitous Apple IPOD, you may recall that there were long playing records made of vinyl. You may have even recorded your vinyl on to cassette so that you could listen to your favourite songs on long trips in the car.

What you were innocently doing was breaching copyright by ‘format shifting’.

Under the proposed legislation, you may copy a lawfully acquired legitimate sound recording (e.g. from a CD you have purchased) on to each type of music player device you own (e.g. a copy could be made on your computer, your MP3 Player and your hard drive car stereo) for your personal use or for someone in your household. For this exception to apply, you must retain both the original version of the sound recording (e.g. the CD) and the copy you made. So if you end up selling the CD on Trade Me, the copy of the music left on your IPOD will constitute a breach of copyright.

Interestingly, the format shifting amendment only applies to sound recordings. Most of the latest digital devices allow you to record and view video content; the amended legislation does not allow you to legally ‘format-shift’ on to your portable video device DVD movies that you have purchased.

Technological Protection Measures

Being allowed to format-shift legally is good news, provided you can in fact physically copy that sound recording. You may have encountered CDs that have built-in copyright protection that prevent you from taking a copy; the means by which copying is prevented is referred to under the legislation as a Technological Protection Measure or ‘TPM’.

The legislation goes to great lengths to ensure that it is illegal to get around these measures. It would be illegal to create, import, hire or offer for sale a TPM circumvention device or service. Only a narrowly defined group of ‘qualified persons’ (including educational establishments and libraries) would be permitted to circumvent TPMs and only for defined purposes (e.g. to allow you to copy for educational or news reporting purposes or to correct an error in a computer program etc).

So, while the legislation will permit copying in certain circumstances, it may not practically be possible to make those copies without breaking the law.

Educators, Librarians and ISPs

The amended copyright law will have an impact on the activities of educational institutions, libraries and archivists. Issues surrounding the digitising and storage of copyright works are addressed and the exceptions to copyright infringement relating to educational use and research purposes have been updated.

In the course of providing services to its customers, Internet Service Providers (‘ISPs’) inevitably make copies of works subject to copyright. The amendments clarify what ISPs are liable for and define the obligations placed upon them in relation to the copyright infringing activities of their customers.

If your activities are in these fields, you should seek advice as to impact the copyright amendments have on your organisation. As for the rest of us, we can sleep easy knowing that the law is starting to catch up with digital reality.

• Ruvini Rendle is an associate specialising in Intellectual Property at Duncan Cotterill.