Copyright (New Technologies And Performers' Rights) Amendment Bill 2005

21 June 2005

Attorney-General

1. We have considered the Copyright (New Technologies and Performers’ Rights) Amendment Bill 2005 (‘the Bill’) for consistency with the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). We understand that the Bill is to be considered by the Cabinet Legislation Committee at its meeting on 23 June 2005.

2. The Copyright Act 1994 gives exclusive rights to copyright owners while allowing limited exceptions for others to use those works. The objective is to ensure the creation, production and distribution of those works in a way that meets society’s needs. The purpose of the Bill is to clarify the application of existing rights and exceptions in the digital environment (taking account of international developments) without changing the existing balance between protection and access.

3. We consider that the Bill appears to be consistent with the Bill of Rights Act. The Courts have recognised that copyright laws do place constraints on the right to freedom of expression contained in section 14 of the Bill of Rights.[1] The right to freedom of expression extends to the freedom to seek, receive, and impart information and opinions of any kind and in any form. Copyright does not protect ideas but rather the form in which they are expressed.

4. Copyright laws recognise that it is acceptable to appropriate ideas provided it is not done by simply copying the words of someone else.[2] To this extent, if the provisions of the Bill are prima facie inconsistent with the Bill of Rights Act we consider that the limits placed on the right to freedom of expression are reasonable and justified in terms of section 5 of the Bill of Rights Act.

5. We consider that the provisions of this Bill appear to be consistent with the scope and intent of the Copyright Act 1994. It extends protection of legitimate commercial interests of copyrights owners to new technologies, and in this way, continues to meet the objectives of the Copyright Act 1994, while allowing for "fair dealing" (research/education etc). For example, clause 24 of the Bill includes digital copies in certain exceptions for educational purposes. Similarly, clauses 29 to 37 of the Bill include digital copies in certain exceptions created for librarians.

6. We also note that in applying the provisions of copyright legislation, a Court is bound (to the extent possible) to apply those provisions in a manner which is consistent with freedom of expression and this requires it to look closely at the facts of individual cases.[3]

Footnotes

1 Copyright Licensing Ltd v University of Auckland [2002] 3 NZLR 76

2 Television New Zealand Ltd v Newsmonitor Services Ltd [1994] 2 NZLR 91

3 Section 6 of the Bill of Rights Act. See Sullivan v Ministry of Fisheries [2002] 3 NZLR 721 (CA) at paragraphs 58 and 61 and Ashdown v Telegraph Group Ltd [2001] 4 All ER 666, 677

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Copyright (New Technologies And Performers' Rights) Amendment Bill 2005. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.