Andrew Brown - Queen's Counsel
Legislative developments

Copyright (New Technologies and Performers’ Rights) Amendment Bill

The Commerce Committee reported back on the Copyright (New Technologies and Performers’ Rights) Amendment Bill on 26 July 2007, recommending that it be passed with amendments. The Bill is designed to amend the Copyright Act 1994 to address the emergence of new technology and to take account of international developments in copyright law. It covers issues such as format shifting, time shifting, and technological protection measures.

The Select Committee has made a number of recommendations for amendments including:

  • A change in title to “Copyright (New Technologies) Amendment Act”.
  • Format Shifting: The Bill provides a limited exception for copying sound recordings for personal use. The main recommendations of the Select Committee were amendments (i) to allow copyright owners to contract out of the format shifting provisions; and (ii) to clarify that the copy must be solely for the personal use of the person who made it or a member of his or her household if the format shifting exception is to apply.
  • Time Shifting: The Bill provides an exception for recording for the purpose of viewing or listening at a more convenient time. The Select Committee has recommended that this provision be amended to clarify that a time shifted recording cannot be made from on an on-demand service and that it must be solely for the personal use of the person who made it or of a member of his or her household. 
  • Technological Protection Measures (TPMs): the Select Committee has recommended retaining all the proposed provisions which relate to TPMs. It was considered that these provisions were necessary to manage the risk of piracy of copyrighted works in a digital environment and that they strike the correct balance between the interest of copyright owners and those of copyright users. Minor recommendations in respect of this part of the Bill include an amendment to allow a user to seek assistance form a qualified person to exercise a permitted act using a TPM circumvention device without prior application to the copyright owner along with a new section to ensure that such persons cannot charge unreasonably high fees for such assistance.

The Select Committee also identified several significant policy issues that it considered were outside the scope of the Bill or could not be resolved within the scheduled timeframe for passing the legislation. These included off air recordings of television programmes to educational establishments, film directors rights, orphaned works and access to works for print disabled persons.

Future amendments to the Copyright Act will also be made to provide for enforcement of the criminal provisions by the National Enforcement Unit.