A More Flexible Copyright law

POSTED BY Rick Shera
27 July 2010

posted in l@w.geek.nz | Legislation | Legal Practice

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Technological change continues to happen at breakneck speed.  As I've discussed in relation to areas such as book publishing, what used to be lucrative business models have to adapt or are liable to destruction almost overnight.

But, if we are critical of content industries for their failure to adapt, then how much more critical should we be of the failure of our laws to cope with change in a timely fashion.  In the copyright area, by the time the Copyright (New Technologies) Amendment Act was passed in 2006 to address technological developments since the 1994 Act it amended (12 years!), it was already out of date. For example, it was decided that there was no need to extend the format shifting exception (which allows music to be transferred from a computer to iPod for private use) to be extended to film.  To quote the Select Committee report (PDF) issued at the time:

...we consider that format-shifting of music for private and domestic use is widespread, while format-shifting of other types of copyrighted works is not.

I questioned that statement at the time but it really is laughable now with the advent of video capable mobile devices, book readers, internet video devices, video sharing sites and an explosion of video creation tools. And yet we are stuck with an outdated format shifting exception because there is not the legislative capacity to respond to the speed of change. That is but one example.

So what to do?

Well, I think there are a couple of processes we could use as a template:

  1. Under the NZ Telecommunications Act, the Commerce Commission can issue Standard Terms Determinations (take care not to abbreviate that one ;-)).  As the Commission's site says, these regulate the terms on which "a designated access or specified service must be supplied with reference to all access seekers and access providers of the service".  In other words, when a new service arrives, the Commission can issue a determination which fleshes out how that service is to be provided, so as to maintain the competition and consumer benefit goals at the heart of the Commerce Act.  Final determinations are issued after a process of drafts, consultation with all affected stakeholders, and often public submission.  The important point though is that such a process can respond relatively quickly to developments rather than awaiting scarce legislative time and unpredictable political will.
  2. When technological protection measures (TPMs) (digital rights management (DRM) as it is sometimes called) for copyright works were given statutory protection under the US Digital Millennium Copyright Act (DMCA) over a decade ago, a provision was added which requires the Librarian of Congress to decide every 3 years if exceptions should be introduced. DRM (e.g. digital locks on software, device limits on transfer of music etc) was thought a decade ago to be the answer to digital piracy. That has not been the case and TPMs have probably caused more problems than they have solved.  The beauty though of a triennial review is that it enables the blunt instrument of DRM to be adapted to changing circumstances.  It also ameliorates the impact of unforeseen consequences, which always lurk in the shadows of IP law reform. We can see a great example of this flexibility in the latest US determination, which allows the breaking of a TPM where necessary to automate reading aloud functionality of an eBook (where that functionality is not made available by the publisher).

I think we should look in New Zealand at introducing something like this mandated review process for the Copyright Act and for other statutes which need to respond to fast moving technological change. It would be a very useful add-on to the current Copyright (Infringing File Sharing) Amendment Bill for example. I say that because, as Colin Jackson reports, even promoters of the Bill such as RIANZ have no idea whether it will work or not. I and others argue that in its current form it will be detrimental.  The truth is, no-one knows. Unforeseen consequences.

Provided the democratic process is protected by open and transparent consultation throughout, a mandated or triggerable review system should be able to achieve responsiveness and yet preserve certainty - ultimately, better laws. That might even make people respect them more.

POSTED BY Rick Shera
27 July 2010

posted in l@w.geek.nzLegislationLegal Practice

VIEWED 4012 TIMES

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