The Report of the E-Learning Advisory Group March 2002

Appendix 3 Digital Copyright – abridged from a paper by NZVCC

International situation
The NZVCC fully supports the stated aims of the Copyright Act 1994 and the discussion paper to ensure “a balance” between the interests of copyright owners and users which is conducive to the promotion of an inclusive, innovative New Zealand economy. As educators, authors and students, members of the university community value knowledge and share the belief that all New Zealanders should benefit from the opportunities that a knowledge society offers. This means that a commitment to ensuring equal access to information and educational resources is even more significant as we enter the digital age. The principle of balance must serve to safeguard the right of all members of our society to be active lifelong learners.

In 1994, the balance that had existed between the rights of copyright owners and users was substantially changed in favour of owners with the passing of the present Copyright Act. The educational provisions in that legislation did not meet the needs of tertiary institutions or the education sector in general. The Copyright Act 1994 imposed significant new and costly compliance requirements that frequently impede the implementation of best educational practice.

Overseas experience with digital copyright legislation shows tertiary institutions are subject to an everincreasing financial and administrative burden, whilst their rights and entitlements as educators are progressively removed.

Tertiary institutions are particularly concerned that restrictive rights of communication, if included in future legislation, will further shift the balance towards the copyright owner.

A right of communication, if not contained within clear parameters, has the potential to infringe upon the basic right to circulate and share knowledge for the benefit of the wider community. The law of copyright, in seeking to protect the economic interests of copyright owners, must not seek to control the movement of information by restricting access to those with the ability to pay for copyright materials. Just as we may browse in a library, lend a book to a friend, or research privately, a technologically-neutral copyright scheme must ensure that such basic rights are protected in the digital environment.

The encroachment of contract law into the field of copyright, particularly the use of standard form “shrink-wrap” or “click-wrap” contracts, frequently denies users the right to exercise their fair dealing rights or legitimately carry out a permitted act. This development threatens to undermine any balance achieved by carefully-drafted legislation and can render the most fundamental public rights impotent.

Along with the rise of the digital age, there has been a paradigm shift in the provision of education towards more flexible learning. Students’ needs are changing dramatically. In today’s environment, where lifelong learning is increasingly necessary for all, students must manage work, family, financial and education commitments. Flexible learning is about meeting the needs of these students, and about providing educational opportunities to those who previously had no such opportunities. E-learning is a vital component of flexible learning, and the development of a knowledge economy requires us to embrace the new possibilities of digital technology and to facilitate flexible learning and electronic resource systems through supportive legislation. For this reason, education must be at the heart of far-sighted economic policy, and thus argues for clear and explicit educational exemptions associated with any new digital provisions in the legislation.

The role of contracts
Increasingly, digital works are sold or licensed pursuant to standard form contracts that restrict the ways in which they can be used. In this way, copyright owners use contract law to deny users the right to exercise the fair dealing rights and other permitted acts provided for in the Copyright Act. There is need for laws that render ineffective any agreement that purports to exclude or limit the exercise of any of the permitted acts expressly provided for in the Copyright Act.

International Issues
As a net importer of copyright works, New Zealand must provide a level of protection to copyright that is commensurate with its trading partners, and must demonstrate good faith to the international community by supporting its commitments with action. Acceding to the World Intellectual Property Organisation (WIPO) treaties will help New Zealand to do this. However, also as a net importer, when New Zealand accedes to international copyright agreements it risks restricting local access to copyright only to the benefit of offshore interests.

Internationally, states have found that digital copyright reforms have tipped the balance in favour of copyright owners. This is not a necessary consequence of reforming copyright law to adhere to the WIPO Internet treaties. The WIPO treaties provide a minimum standard of protection and give individual countries enough discretion to interpret the treaties in a manner that allows individual countries to strike the necessary balance between copyright owners and users. There is a danger, however, that offshore interests or strong lobby groups’ interpretations of the treaties will endanger New Zealand’s ability to strike a balance that is appropriate to our domestic needs.

As stated in paragraph above, acceding to the WIPO treaties would be beneficial, but the treaties must be implemented only in a way that serves New Zealand’s interests. Overseas experience with reform of copyright law to accommodate digital technology is that the balance tends to be shifted in favour of copyright owners and away from copyright users. This is apparent in the US Digital Millennium Copyright Act 1998, the EU Draft Directive on Harmonisation of Copyright and the Australian Copyright Amendment (Digital Agenda) Act 2000. A shift in balance towards owner rights is not in New Zealand’s interest, especially if it wishes to sustain a ‘knowledge economy’.