New Zealand: NZ IT Bulletin

Last Updated: 5 November 2008
Article by Brian Bray

This Bulletin details the coming into force of the provisions of the Copyright (New Technologies) Amendment Act 2008 and a new Bill to remove commissioning of copyright.

COPYRIGHT (NEW TECHNOLOGIES) AMENDMENT ACT 2008

In our May 2008 issue of the New Zealand IT Bulletin, we discussed the Copyright (New Technologies) Amendment Act 2008 (Act) which had just been passed but required further regulations to set a date that would bring the provisions into force. That Act updated the Copyright Act 1994 in a number of ways including:

  • Clarifying the role of Internet Service Providers (ISPs) in protecting copyright.
  • Establishing a 'notice and take down' regime for ISPs to deal with copyright infringements.
  • Making allowances for format shifting by digital music licensees.
  • Giving more protection to copyright owners who use Technology Protection Measures (TPMs) to protect against copyright infringement.
  • Relaxing certain rules for lawful users of computer programs.
  • Generally amending the legislation's language to provide a technology-neutral framework.

Regulations have now been passed and the amendments to the Act come into force on 31 October 2008. The new regulations are:

  • The Copyright (General Matters) Amendment Regulations 2008, which:
    • Provides detail about the form of notice which must be given to an ISP in accordance with section 92C(3) of the Act.
    • Sets out the form of declaration that must be made by a qualified person under section 226D(4) of the Act.
  • The Copyright (New Technologies) Amendment Act 2008 Commencement Order (No 2) 2008, which brings into force the other provisions of the Act on 31 October 2008, except for:
    • Section 92A (requiring ISPs to have a policy for repeat infringers of copyright), which comes into force on 28 February 2009.
    • Sections 48 and 85 (relating to free public playing of communication works) which require further amendments and will come into force on a later date.

ISP liability

The changes in the Act will impact on ISPs where copyright infringement allegations arise. Although ISPs will not automatically be liable for a copyright infringement in most situations, they may be liable for failing to take appropriate steps and responding to such allegations, particularly infringements involving 'repeat infringers'.

Who is an ISP?

The definition of ISP in the Act is very wide and means a person who does either or both of the following things:

  1. Offers the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing.
  2. Hosts material on websites or other electronic retrieval systems that can be accessed by a user. Not only will this cover the usual ISPs but may also pick up any organisation that provides access to the internet. This could include libraries, internet cafes and internet surfing shops.

ISP repeat infringer of copyright policy

As mentioned earlier, ISPs have until 28 February to put in place a policy which they will adopt and reasonably implement to deal with the termination, in appropriate circumstances, of the accounts of the repeat infringers.

The Act does not prescribe any requirements about what the policy must cover or any rules about the circumstances in which a repeat infringer's account must be terminated.

The Act defines a 'repeat infringer' as someone who repeatedly infringes the copyright in a work by using one or more of the Internet services of the ISP to do a restricted act without the consent of the copyright owner.

Unlike other jurisdictions, which have developed rules (regulated or voluntary) such as three allegations of infringement means the ISP must terminate the account of the alleged infringer, the New Zealand regime gives no additional guidance. This heightens the importance of having a very clear policy in place that sets out clearly what will trigger an account termination.

A well drafted policy which clearly states the ISP's approach to handling allegations of infringements, and how these will be dealt with, will become an important risk mitigation tool for any ISP.

If you need any detailed advice about your requirements, or assistance in drafting a suitable policy, then we can assist you.

THE COPYRIGHT (COMMISSIONING RULE) AMENDMENT BILL

Software developers and clients commissioning software will need to consider the impact of this Bill, introduced in August.

The Bill will remove the existing copyright concept of commissioning and its effect on ownership of copyright in the work.

Currently where a person commissions, and pays or agrees to pay for, the taking of a photograph or the making of a computer program, painting, drawing, diagram, map, chart, plan, engraving, model, sculpture, film, or sound recording; and the work is undertaken, that person is the first owner of any copyright in the work, unless the parties agree to the contrary.

The result will be that unless the parties agree to a change, the general rule that the creator of the work will own the copyright in it will apply.

INTERIM GUIDANCE ON GOVERNMENT USE OF OFFSHORE ICT SERVICE PROVIDERS

The State Services Commission has just released Interim Guidance providing advice to government agencies on assessing the risks when considering using offshore ICT service providers to store government information on computer systems located outside New Zealand or using systems located offshore to manage or process government information.

While recognising that a business case may readily identify the benefits, such as lack of New Zealand capability, value for money or possible skill transfer from the offshore provider, these had to be balanced against risks that an offshore provider may pose such as loss of control over data, loss of privacy and security and foreign laws which could enable another government to obtain access to the information without any form of notification as well as the usual jurisdictional issues that arise in cross-border disputes.

The paper identifies 10 key risks and suggests ways to mitigate the risks. The key risks are:

  1. Big picture risks: risks that may put a proposal out of consideration regardless of its other virtues because of matters such as the integrity and reliability of the legal system in the other jurisdiction.
  2. Trust and public confidence risks: how a proposal may adversely affect the Trusted State Services Development Goal for the New Zealand State Services.
  3. Control risks: the need to maintain control over data as required, for example, by the Public Records Act 2005.
  4. Governance, management, and project risks: difficulties that may arise when management of a business function or project is geographically dispersed.
  5. Economic risks: following procurement policy while considering possible effects on the larger New Zealand economy of an offshore proposal.
  6. Business continuity risks: government responsibilities in maintaining capability in the country in the event of an emergency or a service provider failure.
  7. Security and integrity risks: includes industrial espionage, social disruptions, terrorist threats, and data corruption.
  8. Privacy risks: threats to government-held personal information if sent offshore.
  9. Legal and commercial risks: practical and legislation-related risks of doing business outside New Zealand.
  10. Fiscal risks: currency fluctuations, offshore taxes, and other financial risks.

The paper highlights some important issues that government agencies need to consider when contemplating outsourcing data and information storage. It also sets out a series of issues that should be discussed with legal advisers.

The full report can be found at http://plone.e.govt.nz/policy/trust-security/offshore-ICT/offshore-ICT.pdf

STANDARDS NEW ZEALAND TO HOST INTERNATIONAL INFORMATION TECHNOLOGY GOVERNANCE WORKING GROUP

From 3-5 December 2008, Standards New Zealand will be hosting the next meeting of the ISO/IEC international Information Technology (IT) working group in Wellington.

The working group will look at international digital forensics, IT operations, IT projects, IT ethics, the relevance of corporate IT governance standards to government, and consider the development of handbooks for existing IT governance standards.

PDF FORMAT BECOMES ISO STANDARD

Standards New Zealand have recently confirmed that the use of the Portable Document Format (PDF) which allows users to exchange and view electronic documents easily and reliably is now accessible as an ISO International Standard.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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