As reported by Ars Technica, the New Zealand House of Representatives passed a bill on 8 April 2008 reforming copyright law for the "digital age". Most netizens even outside the US will have come across the American DMCA: any mention seems tainted by the taste of bile. The DMCA criminalises circumvention of digital rights management (DRM) technologies and access controls—many folk argue at the expense of "fair use". Do the NZ reforms provide workable compromise?
Parliament Buildings, Wellington, New Zealand [© iStockPhoto]
Ars cite a Canadian law professor as saying:
The anti-circumvention provisions are arguably the best of any country, since they are compliant with WIPO, limited in scope, and seek to preserve fair dealing rights.
Having looked at the new Copyright (New Technologies) Amendment Bill I find myself almost as confused as I was before; it raises at least as many questions as it answers.
Time and format shifting
I've always wondered exactly how recording a TV programme to VHS tape, DVD+RW, or PVR hard drives sat with current copyright laws. It must be pretty unusual to walk into a living room and not find the home owner's favourite TV series or movie archived on recordable media for repeated viewing at their leisure. Fortunately the bill specifies that anyone watching TV that isn't "live" is no longer engaged in a criminal act (recording of an on-demand broadcast isn't allowed). It does mean, however, that domestic recording libraries are still illegal: you must watch your recordings within a "reasonable" time frame and then delete them. No repeat viewings (you'll get those on TV anyway!). A couple of examples help clarify this:
A records a movie to be screened on television because she will be at work when it screens. She watches the movie on the weekend and then later tapes over it. Provided the conditions in s 84(1) are met, the copy that A makes is not an infringing copy.
B copies music from a streamed Internet audio service and keeps the copy as part of B's music collection, in order to listen to it multiple times on demand. Copies made for the home library or collection in this way are infringing copies.
If you can buy a product that is designed to let you record digital television to a hard disk, and then move it to DVD, why shouldn't you also be allowed to "format shift" it for viewing on your iPod (for example)? Oddly, although the bill makes format shifting music/ audiobooks etc. from CD to your iPod legal (it wasn't before, despite being widely practised) it does not extend the same rights to video. As you read the following, mentally substitute "video recording" for "sound recording":
What applies to a music CD on your shelf surely also applies to the movie you bought on DVD that sits beside it? How is audio conversion to MP3 different from video conversion to H.264? Maybe it comes down to the thorny issue of encryption. It's almost as if the bill is saying "Your music CD isn't encrypted (usually) therefore you can shift it—but your DVD Video is encrypted so you can't shift that". Does encryption stop format shifting from being allowable, or is it not allowable because it's encrypted?
Copy protection/ encryption
So can you circumvent technological protection measures (TPM i.e. DRM)? Yes, and no. The bill says:
Nothing in this Act prevents any person from using a TPM circumvention device to exercise a permitted act under Part 3.
Permitted acts may include criticism, review, or news reporting—but no mention of making backups for safe-keeping, disc images for watching on your laptop during long-haul flights, or re-encoded versions for personal viewing on an iPod while commuting. You are not free to watch material you purchased when or where you choose to.
Having taken a small step forward by allowing limited TPM circumvention, however, the bill then makes the supply of devices, services, or information for the purpose of circumventing TPM an offence (punishable by a fine and/or jail). That said, a "qualified person" (e.g. librarian) can circumvent TPM on behalf of a user in certain circumstances, but only if the copyright owner/ exclusive licensee refuses a user's request for assistance or fails to respond within a reasonable time.
So let's get this straight: you can circumvent TPM for "legitimate" reasons, but only if you happen to be DVD Jon and can work it out for yourself because nobody can tell you how to do it—unless your local librarian happens to be DVD Jon—because although said librarian can theoretically help, it's illegal for anyone to help him/her help you. Besides, can you imagine returning borrowed books and asking the person at the desk if they wouldn't mind stripping the copy protection from a DVD you just bought so you can embed a few clips into a presentation for your Media Studies paper? If they did so with a smile Kiwis would soon flock to their local libraries, every one a budding film critic.
Region locking
Region codes are the bane of travellers. I firmly believe in the right to playback media legally sold and purchased in one arbitrary "region" in another. The House of flying daggers DVD I bought in New Zealand is the exact same movie I could go out and buy in England; it wasn't sold on a subscription basis, like the region- and carrier-locked iPhone. There is a published unlocking procedure for my Philips DVD player, and likewise for the Matshita DVD drive in my Mac mini (VLC doesn't insist on region coding in software, as Apple DVD Player will still do).
Buying (or renting) movies on iTunes is one way to avoid region locking, but only if you live in the US since the rest of the world is denied access as of this writing. You could also buy fire sale HD DVDs, which unlike the format war winner Blue-ray lack any region coding.
The Copyright (New Technologies) Amendment Bill allows New Zealanders to circumvent region locking of movies and games they own (that is "non-infringing" copies of a work i.e. not pirated copies). The bill specifically excludes region locking from its definition of a technological protection measure:
...it does not include a process, treatment, mechanism, device, or system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a noninfringing copy of a work.
Now that's one in the eye for region codes: if more countries were to follow suit that ridiculous market control tactic may find itself depreciated.
My take
Technological capabilities, consumer expectations, and the law remain at odds. The NZ reforms are a small step in the right direction, but it's time for some real out-of-the-box thinking on this to bring an end to the short-sighted and constrained gestures made thus far. People want to move their purchased digital content around for personal use, just as they want to (and can) move their self-produced photos, calendars, documents etc. between desktop computer, laptop, phone, or PDA.
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