Internet Service Providers and the copyright industry weren’t the only ones busy on the copyright front these days. New Zealand reformed their copyright laws which was followed up by Germany four days later.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
There’s no doubting it’s been a busy week this week for those watching the copyright and file-sharing debates in all its incarnations. Law was one of those incarnations. In just one week, New Zealand (6th) and Germany (10th) have reformed their copyright laws.
New Zealand
For New Zealand, a report surfaced on Stuff.co.nz which mentions that the copyright laws would allow audio format shifting. There are a few interesting things in the New Zealand Copyright reform bill (PDF). (Author’s note: Here is the page which includes more information. It appears as though the amendment was issued in 2006 and enacted recently in 2008 which explains why there is a ‘2006’ in the legislation URL) Here are some highlights:
Decompiling a computer program:
“80A Decompilation of computer program
“(1) The lawful user of a copy of a computer program expressed in a low level language does not infringe copyright in the program by decompiling it, if the conditions in subsection (2) are met.
“(2) The conditions referred to in subsection (1) are that
“(a) decompilation is necessary to obtain information necessary for the objective of creating an independent program that can be operated with the program decompiled or with another program; and
“(b) the information obtained from the decompilation is not used for any purpose other than the objective referred to in par paragraph (a).
Copying sound recordings for personal use:
“81A Copying sound recording for personal use
“(1) Copyright in a sound recording and in a literary or musical work contained in it is not infringed by copying the sound recording, if the following conditions are met:
“(aa) the sound recording is not a communication work or part of a communication work; and
“(a) the copy is made from a sound recording that is not an infringing copy; and
“(b) the sound recording is not borrowed or hired; and
“(c) the copy is made by the owner of the sound recording; and
“(d) that owner acquired the sound recording legitimately; and
“(e) the copy is used only for that owner’s personal use or the personal use of a member of the household in which the owner lives or both; and
“(f) no more than 1 copy is made for each device for playing sound recordings that is owned by the owner of the sound recording; and
“(g) the owner of the sound recording retains the ownership of both the sound recording and of any copy that is made under this section.
“(2) For the avoidance of doubt, subsection (1) does not apply if the owner of the sound recording is bound by a contract that speci?es the circumstances in which the sound recording may be copied.”
Time shifting:
“84 Recording for purposes of time shifting
“(1) A person (A) does not infringe copyright in a programme included in a communication work, or in any work included in it, by recording it, if��”
“(a) A makes the recording solely for A’s personal use or the personal use of a member of the household in which A lives or both; and
“(b) A makes the recording solely for the purpose of viewing or listening to the recording at a more convenient time; and
“(c) the recording is not made from an on demand service; and
“(d) A has lawful access to the communication work at the time of making the recording.
“(2) However, subsection (1) does not apply, and A does infringe copyright in the communication work recorded and in any work included in the communication work, if��”
“(a) A retains the recording for any longer than is reasonably necessary for viewing or listening to the recording at a more convenient time; or
“(b) in the event that the person who views or listens to the recording wishes to make a complaint to a complaint authority, A retains the recording for any longer than is reasonably necessary to prepare and despatch the complaint.
Terminating repeate copyright infringers:
“92A Internet service provider must have policy for terminating accounts of repeat infringers
“(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.
“(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.
Internet Service Providers “caching” traffic:
“92D Internet service provider does not infringe copyright by caching infringing material
“(1) An Internet service provider does not infringe copyright in a work by caching material if the Internet service provider��”
“(a) does not modify the material; and
“(b) complies with any conditions imposed by the copyright owner of the material for access to that material; and
“(c) does not interfere with the lawful use of technology to obtain data on the use of the material; and
“(d) updates the material in accordance with reasonable industry practice.
“(2) However, an Internet service provider does infringe copyright in a work by caching material if the Internet service provider does not delete the material or prevent access to it by users as soon as possible after the Internet service provider became
aware that��”
“(a) the material has been deleted from its original source; or
“(b) access to the material at its original source has been prevented; or
“(c) a court has ordered that the material be deleted from its original source or that access to the material at its original source be prevented.
“(3) Nothing in this section limits the right of the copyright owner to injunctive relief in relation to a user’s infringement or any infringement by the Internet service provider.
“(4) In this section,��”“cache means the storage of material by an Internet service
provider that is��”
“(a) controlled through an automated process; and
“(b) temporary; and
“(c) for the sole purpose of enabling the Internet service provider to transmit the material more efï¬ciently to other users of the service on their request “original source means the source from which the Internet service provider copied the material that is cached.”
Requirements for a notice of infringement:
“92CA Requirements for notice of infringement A notice referred to in section 92C(2A) must��”
“(a) contain the information prescribed by regulations made under this Act; and
“(b) be signed by the copyright owner or the copyright owner’s duly authorised agent.
Laws regarding false copyright infringement notices:
“112A Damages for falsely claiming copyright ownership or licence
“(1) This section applies if��”
“(a) a person (A) falsely claims to be, or to have been granted a licence by or on behalf of, the owner of the copyright in a literary, dramatic, musical, or an artistic work or a
sound recording or film; and
“(b) A has threatened or commenced proceedings for preventing, or claiming damages in respect of, a performance or communication to the public of the work, sound recording, or film (which in this section is called the event); and
“(c) as a result of the threat or commencement of proceedings, the event has not taken place.
“(2) A court may award damages to compensate any of the following persons for any loss sustained because the event did not take place:
“(a) in the case of a threat of proceedings, the person to whom A made the threat:
“(b) in the case of the commencement of proceedings, a defendant:
“(c) any other person interested in the event.
So, all in all, the New Zealand copyright reform bill isn’t bad, though not exactly perfect either. For an analysis of the new laws regarding TPMs, check out Michael Geists posting on the matter.
Germany
While ZeroPaid has searched for the legislation in Germany, searching with a Google translator on Germany’s parliamentary website proved fruitless. While this makes things a little difficult, one can easily get a good sense for what the legislation looked like through a few commentaries.
The first English report on the matter was posted by TheDaily, saying that the copyright industry has a new weapon to fight copyright infringers on the internet.
The report appears to be a complete loss for German file-sharers, but hang on, what does the German copyright industry have to say about the new law? Looking at the German record labels website Bundesverband Musikindustrie (Google translation, original version), there appears to show a slightly different story:
Representing the Association of the German Book Trade, the Association of Interactive Entertainment Software (BIU), the Society for the prosecution of copyright violations (GVU), and the peak organization of the film industry (SPIO), said Professor Dieter, Chairman of the Federation music industry: “authors, artists and their exploiters must live by their achievements. “ If a can of Coke at the supermarket longer enjoys legal protection as a music albums, movies, audio books or computer games on the Internet, will give them the means of livelihood taken away. ”
The organisations of the creative economy expressed disappointment that the amendment at the proposed solutions for improved copyright protection on the Internet are often inadequately were. “Instead of solving problems, accuses the bill now before many new issues and shifted the costs of legal proceedings on the side of victims,” said Gorny. Legislators have missed the opportunity, the copyright of digital reality.
So, essentially, is appears, judging by the translation, that the industry is upset that they would have to take their issues to the courts and prove that infringement actually occurred. Obviously, this little issue upset the major recording industry in Germany.
The situation appears to mirror that of Canada’s current copyright situation as it relates to file-sharers. When the Canadian Recording Industry Association (CRIA) tried to gain access to file-sharers personal information (basically, asking the ISP to hand over their identities), the courts told them that they would basically have to prove that copyright infringement occurred in the first place and that a screen-shot of a users shared directory wasn’t really adequate in of itself. Since then, CRIA has been lobbying regulators heavily to change the copyright laws, no doubt so they could make lawsuits easy enough for them. It’s very unclear whether the same thing will happen in Germany where the record labels will simply not file lawsuits against users thanks to that particular occurrence, but there appears to be similarities going on.
Still, some are still wondering what this all really means for German file-sharers. Janko Roettgers of P2P-blog reported on the story:
Rights holders will now be able to get a simple court order to force ISPs to give up their customers names, similar to what record companies are already doing in the US.
German rights holders didn’t have direct means to reveal the identities of file sharers up until now, which is why they initiated thousands of criminal cases, resulting in prosecutors sharing the names in question with them. Most of these criminal cases were dropped immediately, but record companies used the names to send of cease and desist letters, complete with cost notices ranging from a few hundred up to several thousand Euros, depending on the case and the lawyers involved.
A hand full of law offices send off tens of thousands of these letters in the matter of months, with some even resorting to bar codes to automate mass enforcement. Most recipients decided to pay up to forgo an even more expensive dragged-out lawsuit, and the money is usually split between rights holders, lawyers and P2P surveillance companies. The new 100 Euro rule and the additional costs for getting the names in question could put an end to this mass enforcement practice.
However, it’s too early to celebrate for file sharers: The 100 Euro fine has only been put in place for acts infringement that are not reaching a “commercial level”. There is no clear definition for this term, and some politicians even suggested that the mere fact of benefiting monetarily from file sharing because you don’t have to buy an album or a DVD constitutes a commercial advantage.
Roettgers also comments that until the courts decide what the lawmakers mean by all of this, users will likely keep using P2P.
Obviously, there’s a lot of confusion about all of this, but is appears as though the recording industry is upset at the copyright laws. Either way, it’s interesting times for file-sharers on the legal front.
Drew Wilson on Twitter: @icecube85 and Google+.
