Hon Christopher Finlayson

Part 2 Amendments to Parts 6 to 11 of Copyright Act 1994

CHRISTOPHER FINLAYSON (National) : My call on this part will be relatively brief because Dr Worth has dealt in some detail with technological protection measures, but there are two issues that I want to raise. As we know, and both speakers have referred to it, the bill deals with technological protection measures but it limits the scope of these measures to those that protect established rights of copyright owners and, as the report of the Commerce Committee says, it specifically excludes the so-called access controls. That is an issue that we may need to revisit at some stage in the future. It is a very interesting issue.

It is perhaps necessary for the record to distinguish between the two types of technological protection measures. Technological protection measures that protect the traditional prerogatives of copyright owners are largely uncontroversial, and these are the ones we are dealing with tonight. They are measures that protect against activities that are traditionally part of the copyright—for example, reproduction, distribution, public performance, and the like. Technological protection measures that control access to a work are much more controversial. This type of technological protection measure is particularly important for musical works, for example, the enjoyment of which does not necessarily implicate the established rights of the copyright owner.

The commentary to the select committee report states: “We consider that the principal Act is not intended to protect access-control technologies that are used to price-discriminate or control the geographical distribution of works to the detriment of users in New Zealand.” However, it is interesting to note that the copyright laws of the United States and also, I think, of Australia, include provision for access-control technological protection measures in addition to the traditional ones I have referred to tonight. It is possible that this will be an issue that we have to revisit at some stage in the future if necessary to bring our law into line with that of Australia and the United States. That is the first point I wanted to make.

The second point is a matter that picks up on what Dr Worth said about eleventh-hour amendments. I said that I was grateful to the Minister for providing this material to me in the morning, but there is an issue that I wonder whether she will need to talk to her officials about because I have been studying it closely for the last couple of minutes and I am just a little bit worried about it. The bill adopts a fairly standard definition of technological protection measures. In the United States in recent times, as I understand it, there has been divergent case law as to whether, if one misuses another’s password, that could amount to circumvention of a technological protection measure. As I understand it, password protection is now a standard mechanism accompanying the marketing of copyright-protected works. I have taken a good look at the definition of technological protection measure circumvention device. It means a device or means that is primarily designed for the purpose of enabling or facilitating the circumvention of a technological protection measure, and then of course there is the Minister’s amendment. I will read it as if the Minister’s amendment has been included “and has only limited commercially significant application except for its use in circumventing a technological protection measure”.

Now, the officials may know better than me, but from just looking at the words of those provisions I do not know that misusing someone else’s password will be caught by that form of words. It may be necessary to try to clarify this point tonight. I am sorry that this matter has come to my attention only this afternoon, but I have a problem with it and I wonder whether it should be addressed, given that password protection is a standard mechanism accompanying the marketing of copyright-protected work. Perhaps we need to try to deal with that issue tonight.