[A copy of this document is available via the link from http://www.cs.auckland.ac.nz/~pgut001/]. The discussion paper "Digital Technology and the Copyright Act 1994" proposes various changes to the Copyright Act. Although the paper asks various general question, it's not possible to directly address some of the issues it raises via the questions which are asked. Because of this, the following is presented as a general commentary rather than trying to shoehorn it into fitting individual questions. In addition, some of these issues will have to be resolved by lawmakers (which I'm not) The major concern with the discussion paper is that content providers in the US have shown repeatedly that they are prepared to abuse legislation such as the Copyright Act in every way possible in order to maximise their own profits and disenfranchise consumers. Some of the examples presented below include using it to prevent users from viewing legally purchased films on legally purchased DVD players, enforcement of differential pricing schemes (which as a side- effect severely limits consumer choice in countries like New Zealand), forcing consumers (via technological means such as disabling fast-forward) to watch commercials when they have paid to see commercial-free films, silencing criticim and independant review of products (particularly when the review points out that the product is defective), preventing users from controlling content they have created (for example preventing someone who had taped his wedding from making copies to send to relatives/friends), preventing the creation of tools such as virus scanners, censoring academic research, and any number of other misuses. The discussion paper asks whether the Act needs to be further tightened, however as it's currently written it's already too restrictive and needs to be loosened instead in order to prevent further abuses by content providers. Adopting some of the proposed amendments could very well stifle communication, innovation, scientific research, and creativity of New Zealand society as a whole just to maximise the short-term profits of the entertainment industry. The following sections cover these issues in more detail. Excessive Powers Granted to Content Providers Part 4, Section E, "Technological Protection Measures and Rights Management Information" (starting at paragraph 152) covers the issue of technological protection measures. The major problem with the current Copyright Act is that it appears to take a very black-and-white view of copyright. All content providers are seen as honest victims and all consumers (formerly known as 'citizens') are either dishonest criminals or potential criminals who need to be prevented from making the leap from "potential" to "actual". Because of this, the legislation appears to have been written with a heavy bias towards protecting content providers from consumers. As recent events in the US have shown, content providers will abuse this very one-sided legislation in any way possible, making the consumers the victims and the content providers the abusers. With section 226 of the Copyright Act, parliament has in effect outsourced the lawmaking process to content providers, who by imposing arbitrary restrictions on users and defining them to be copyright control measures can then use the full force of the law to prosecute users who don't comply with their restrictions. For example some DVDs come with a large chunk of advertising at the start and disable the fast-forward button on the remote when played, forcing consumers to watch ads after they have paid a (nontrivial) amount of money to see an ad-free movie (presumably they'd be watching it on TV if they wanted to see commercials). As a result, the Disney advertising slogan "You can own it today on DVD" really means "You have a limited license to view some of it today on DVD provided you also agree to the following list of restrictions...". Anyone who tries to skip the ads would be committing a criminal act under section 226 of the Copyright Act. Obviously forcing users to sit through ads instead of fast-forwarding them has nothing to do with copy-protection, but by labelling it as such the content providers can use the US Digital Millenium Copyright Act (DMCA) or Copyright Act to prosecute anyone who tries to skip the ads. (Recently, a collection of major US broadcasters including ABC, CBS, and NBC banded together to sue ReplayTV for selling a device which allows viewers to skip commercials. As usual the charge was copyright infringement, although fast-forwarding past ads has nothing to do with copyright). The enforcement mechanism for these restrictions on DVDs is CSS (content- scrambling system), which is, as usual, claimed to be a copy-protection mechanism in order to put the full weight of the DMCA or Copyright Act behind it but which has nothing to do with copy protection (the DVD can be copied with or without CSS, and content providers in the US have been unable to show a single instance in which a DVD was copied illegally via CSS). The main function of CSS is to act as a differential pricing enforcement mechanism, in which, via region-coded DVDs, NZ consumers can be charged a significantly higher price for the same films as US consumers. Less widespread uses are to force consumers to watch ads as mentioned earlier, and similar measures. As a result of this, a consumer can buy a DVD player legally, buy a DVD legally, but when they put the two together the film won't play. The user has every legal right to view the film, but they can't because if they did, content providers might make less money. A side-effect of the way CSS is used for price fixing is that, besides making DVDs more expensive in countries like New Zealand, it also severely limits consumer choice. Since region 4 is a relatively small market, many titles are never released for this region. When someone is forced to buy a region 1 DVD because a region 4 version isn't available, it's necessary to breach the Copyright Act in order to view it. Although viewing a legally purchased film on a legally purchased player would be regarded as "fair use" by anyone except the content providers, the Copyright Act turns it into a crime. (A note on "fair use": New Zealand copyright law doesn't specifically define "fair use", although US copyright law does. The nearest New Zealand equivalent is probably the tradition and law surrounding the concept of "fair dealing", however neither this nor the US definition, which applies only to actual copying but not to simple things like the right to read/hear/view a work, are what's meant here. The probable reason why these uses aren't specified in copyright law is because, at the time the laws were drafted, no- one imagined that content providers would try to restrict uses in the ways which technology has allowed them to do. Because of this confusion, the term "reasonable use" is used here (in combination with "fair use"), a list of "reasoanble uses" from the Harvard Law School Openlaw list is provided further on). Another example of the effects of the black-and-white view taken in the Copyright Act is that various digital recording devices contain built-in mechanisms to prevent users from making any copies of material, even if it's their own material. For example someone wanting to make a copy of a Minidisc recording he had made of his wedding to send to friends was prevented from doing so by the built-in protection mechanism in the recorder, which assumed that the only reason why anyone would ever want to make a copy was for piracy purposes (it's not known whether he eventually gave up, or took steps to "defeat the copy-protection mechanism used on electronic copies" in order to be able to copy his own recording). Just to emphasise this point, the recorders assume that the copyright for any analogue recording made with the device is not held by the person making the recording, in other words that all users of the device are pirates. Although the Copyright Act doesn't explicitly make this assumption, the Act has outsourced the process of deciding what is and isn't fair/reasonable use to content providers who can enforce any condition they like as a "copyright protection mechanism", with section 226 providing the means to enforce this. Much other technology exists which applies similar restrictions. For example Intel's CPRM (Content Protection for Recordable Media) has default settings which disallow any copying, and even if this is somehow bypassed allow only one copy to be made (this is are never directly mentioned in connection with CPRM, but is buried in the depths of of the "Interim CPRM/CPPM Adopters Agreement" which can with much persistence be obtained from the DVD consortium). This measure isn't meant for CDs or digital audio, but direct analogue recordings made by the owner of the device. Again, the assumption is that the person making the recording isn't entitled to copy their own work, because all consumers are pirates and no consumer could possibly want to make copies of their own work. These are merely two examples taken from many technologies already in use or being proposed for digital recording. Another example of the excessive powers granted to content providers by the Copyright Act may be seen in this submission, which was made via email. I can claim that this is a copyright-protected work (obviously) and that an act such as reading it out loud (presumably it will need to be read at some point) constitutes a copyright-circumvention measure. This sounds ridiculous, but just such a restriction was used in an eBook in the US, so that, for example, a parent reading the book out loud to their children as a bedtime story - one of the affected eBooks was "Alice in Wonderland", covered in more detail further down - would be regarded as having circumvented the copyright protection and could be prosecuted under the DMCA. Furthermore, since the Copyright Act criminalises "publishing information intending to enable or assist persons in circumventing copyright protection", providing the means to circumvent the prohibition on reading the work out loud (also known as "teaching people to read") would also be illegal. Turning school teachers into criminals probably wasn't the intent of the authors of the Copyright Act. Prohibition of Computer Security Measures More serious abuses of the Copyright Act are possible. Before Windows macro viruses became common, the state of the art in virus technology used sophisticated self-encrypting viruses which used various "stealth" techniques to infect systems and avoid scrutiny. By defining the encryption used in a virus to be a copy-protection mechanism (a standard technique used by content providers), anyone seeking to analyse the virus in order to prepare a defence against it would be "making, importing [...] devices or means intended to be used to defeat copy-protection mechanisms". In addition since all virus scanners need to decrypt suspected virus information in order to scan it, anyone writing or selling virus-scanning software would be in breach of the Copyright Act. As long ago as 1992, tools such as the infamous Dark Avenger Mutation Engine came with licensing terms which stated that "You are free to include this Engine in viruses. Using it in another ways is prohibited [sic]". Although it would have been difficult to prosecute the Dark Avenger (the virus author) due to the lack of appropriate legislation, the Copyright Act at least makes it possible to prosecute anyone making the tools to defend against his viruses (exactly how this would be resolved in court would be interesting to observe, since it's something which is most obviously *wrong* but apparently supported by the law). There are already real-world virus cases in which section 226 presents a real problem. The Adobe Acrobat format was recently discovered to be vulnerable to viruses. Acrobat uses encryption for copyright control purposes (and this is at least a vaguely accurate description of how the encryption is used, rather than a misuse of the term to impose arbitrary restrictions on consumers). Any attempt to scan Acrobat documents for viruses therefore requires that the anti- virus software violate section 226 of the Act. Since other data such as Word documents and Excel spreadsheets contain similar functionality (and are a well- known virus infection mechanism), the same problems exist for other document types (I assume the recipient of this submission scanned it for viruses before reading it, breaching the Copyright Act in the process). Similarly to viruses, hacking tools often employ technology which can be classed as copyright-protection mechanisms in the manner described above, so the Copyright Act, if taken literally, would significantly impede attempts to combat hacking and related computer misuse. Although this may sound far- fetched, exactly these tricks have been used in the US by content providers to prevent analysis, review, and criticism of their products. Further negative effects on computer security research and practice follow logically. For example in 1998 I discovered a major flaw in Microsoft Internet Explorer's encryption (specifically, CryptoAPI, which is actually used by all of Windows) which affected all copies of Windows worldwide. To do this, I had to reverse-engineer the software to find the flaw. Microsoft could quite validly have claimed that the software I reverse-engineered was used for copyright protection (it probably was, somewhere, somehow, although its major use was for protecting credit cards, medical records, and other sensitive information). As a result, they could have had me charged under section 226 (it should be said here that although Microsoft have in the past engaged in assorted dubious behaviour as shown in various court cases, they have never stooped to this level). However, the fact that someone hasn't done it yet doesn't mean that it won't happen. It's much easier (and certainly cheaper) to shoot the messenger than to fix the problem, and the Copyright Act gives companies all the ammunition they need for this task. Adobe's actions in prosecuting Dmitry Skylarov for pointing out to them that their security was broken demonstrates that companies are quite ready to resort to such measures to silence critics. Some companies are already taking advantage of legislation like the DMCA (the Copyright Act is effectively the same thing) to silence any public discussion of their products. For example the PGP source code has always been available for public review so that users may assure themselves of its provenance. Network Associates recently released the code under the following terms: [You may not...] (vi) Provide, or otherwise disclose information regarding any discovered bugs, errors, architecture issues or problems with the Source Code or Compiled Code to any party other than Network Associates, or disclose the results of any benchmark test any third parties without Network Associates' prior written consent. In other words, if you discover a security hole in the software, one which could affect huge numbers of users and result in massive losses to businesses, you're not allowed to warn anyone about it. This allows the vendor to ignore the problem for as long as they like (there are cases in which known security problems have been ignored by a vendor for years because they couldn't be bothered fixing them, even when they were being actively exploited). Furthermore, it's not even possible to "disclose the results of any benchmark test" (in other words, to test the product in order to review it). Imagine if a car was sold with a requirement that the new owner not comment on it in any way to anyone without the written permission of the manufacturer! This, however, is exactly what the Copyright Act is allowing vendors to do. One wonders how the Ministry of Consumer Affairs, one of whose functions is to inform consumers of "the results of any benchmark test" of commercial products they're called upon to investigate, would react to such a restriction. In late 2000, a team of researchers headed by Ed Felten, a professor at Princeton University, took up an Recording Industry Association of America (RIAA) challenge to find flaws in products produced as part of the Secure Digital Music Initiative (SDMI). The team succeeded in showing that all of the products were flawed, and, as is normal for academics, wrote a paper and prepared to present it at a conference. The RIAA threatened to have them prosecuted under the DMCA for taking up the challenge the SDMI had issued and showing that the products they were selling were flawed. Cindy Cohn, counsel for the Electronic Frontier Foundation (who is representing Felten and others) summed up the situation with: "The DMCA set up a system where, essentially, the government outsourced censorship of science" The paper was finally presented at the Usenix Security Symposium in August after the society which organises the conference took the RIAA to court. As a member of the program committee which reviewed and approved the paper for publication, legal opinion was that I (and the other committee members) could be held liable under the DMCA (which contains the same wording as our Copyright Act). As this example has shown, the Copyright Act can (and will, in the US) be used to censor academic research, in this case research which also served as critical analysis of commercial products, showing them to be defective. Again, copyright law was misused to silence criticism, not to prevent piracy. In an interesting twist on the way in which the RIAA's self-interest is acting to prevent computer security measures, an RIAA lobbyist recently attempted to have an amendment made to anti-hacking legislation which would have made it legal for the RIAA to break into computers and delete any files or information they didn't like the look of. When the details were leaked (one US Congressional staffer referred to it as a "license to virus", and legislators from both parties opposed it) and the story was reported in Wired News ("RIAA Wants to Hack Your PC", Declan McCullagh, 15 October 2001) the amendment was withdrawn. In this case the RIAA wanted to be given the right to break into computers and destroy data - a serious crime in most countries - with complete immunity from prosecution for any damage caused to the system, "any impairment of the availability of data, a program, a system or information". This would have been equivalent to allowing debt collectors a free hand to destroy as much of a house and contents as they needed in order to repossess a TV or VCR. The RIAA's response to the failure of their initial attempt was to instead develop plans to attack user's computers without the destruction of data as a direct goal. This is known as a denial-of-service (DoS) attack, and was reported in ZDNet news, "RIAA: We'll smother song swappers", 16 October 2001, John Borland. A RIAA DoS attack would also require changes to anti-hacking laws since it's just as illegal as malicious data destruction in many jurisdictions. Destruction of Fair/Reasonable Use Rights An earlier section mentioned the prohibition on reading "Alice in Wonderland" to your children. The text of this book, printed in 1865, has been in the public domain for the better part of a century. The electronic text of the book was created by volunteers working for Project Gutenberg, which takes public-domain literature and makes it freely available online. Adobe then used it for their Glassbook eBook software and added the following restrictions (taken verbatim from the title page of the Adobe version): Copy No text selections can be copied from this book to the clipboard. Print No printing is permitted on [sic] this book. Lend This book cannot be lent or given to someone else. Give This book cannot be given to someone else. Read Aloud This book cannot be read aloud. Lawrence Lessig, a Stanford law professor, summed it up with "So basically you're not allowed to read Alice in Wonderland to your child" (note that Adobe later claimed, after a public outcry, that the restrictions had been misinterpreted, in the same way that they claimed that their position on Dmitry Skylarov had been misinterpreted. His prosecution is proceeding anyway). This incredible type of restriction as an example of how publishers are oppressively applying digital-rights management technologies to deprive the public of fair/reasonable use rights. Imagine the outcry if any book publisher were to produce a book with terms like that! Unfortunately because this public-domain piece of literature is in electronic form, the DMCA (in the US) and the Copyright Act gives the publisher (who in this case isn't even the copyright holder) the right to enforce these restrictions, and back them up with the full weight of the law. The ability to combine open-ended legislation like the Copyright Act with technological measures opens up a veritable Pandora's box for users. In the words of Jeff Ramos, Microsoft's Director of Worldwide Marketing: "This will open a Pandora's box," he said, promoting the idea of "elaborate rights." These, he said, could move the concept of buy-once rights to time- based rights -- "you can make it so the user can, say, only read this book on Tuesday" -- or location-based rights. In other words content providers will use the technology to do whatever they want to consumers, and without legislation to protect consumers (and the current Copyright Act seems to go out of its way to give content providers the means to hurt consumers) it's only going to get worse. Companies cannot be trusted to act in the interests of the consumer (or in any vaguely responsible manner), but will, as events in the US have shown, act to protect their business, lock out competition, and silence critics. As a result social policy will be created by content providers in smoke-filled back rooms, not by open public discussion and legislation. This policy is not legally enforceable, but it will be enforced nonetheless by equipment built for the content providers, and attempts to avoid that enforcement *are* legally enforceable. The Copyright Act therefore doesn't protect existing, traditional rights (see below) but removes those rights at the whim of the content provider. Inadvertent Violation of the Copyright Act There are several ways to inadvertently violate the Act because of the way it is worded and the assumption it makes that any special technology exists solely to circumvent copy protection. An example of this problem is present in a large number of today's PCs. Many speakers intended for use with computers can accept direct digital (SPDIF) input in place of analogue input, however legacy software isn't aware of this and assumes that all output is analogue. To work around this problem, motherboard and sound card manufacturers feed the digital output from a sound card back out in SPDIF format while reporting to the software that it has been converted to analogue format (some devices and software support direct SPDIF output so this isn't necessary, it depends on the manufacturer and software used). This functionality is built into the sound card or motherboard (if it includes onboard sound), and is a normal feature required in order for digital sound output to work properly. Since it bypasses the normal "protection" mechanism (conversion into analogue form, with the result that a recording made of this form would be degraded), it would constitute a copyright protection circumvention device, with the usual problems involved for anyone selling or importing it. This is an unavoidable feature built into motherboards and sound cards. Its purpose is to allow the use of digital speakers, however it's covered by the Act as circumvention technology since it could, in theory, be used for this purpose. (This also touches on some of the points raised in Question 4 and 5 of Part 4, Section E, however in this case the issue isn't conversion into digital form but non-conversion into analogue form). Copyright Legislation is Deliberately (Ab-)Used by Content Providers The examples listed above are just a few chosen to illustrate how content providers have abused copyright legislation to impose arbitrary and unreasonable conditions on consumers, and how the unfortunate wording of the Copyright Act criminalises what would otherwise be perfectly legal behaviour. Content providers have made no secret of their intent in this area. For example Tower Records Senior VP Mike Farrace explained in his testimony before the US Congress: "If intellectual property owners had the right to control copyrights years ago the way they propose to do now, there would be no used books, no lending your records to a friend, no video rentals, and no donations of recorded products, software or even books to libraries or schools" "We have the same concerns about the rules our customers are being asked to agree to. These end-user license agreements which aren't even seen by the customer until after they've paid for the music, can be downright oppressive. Some have outrageous restrictions written by lawyers who see people as thieves instead of customers." Again, this is an example of how the DMCA and Copyright Act have given content providers the ability to define social policy without any input from parliament or the public (although they can then back it up with the full force of the law, with enforcement paid for by taxpayers). After the 2600 trial in the US, Jack Valenti, president of the Motion Picture Association of America (MPAA), in a public debate held at Harvard Law School gloated: "I'm rather jubilant now. What Judge Kaplan did was blow away every one of these brittle and fragile rebuttals. He *threw out fair use* [emphasis added]; he threw out reverse engineering; he threw out linking" There's no beating about the bush about copyright here: the MPAA doesn't want to allow fair use, and the judge gave them what they asked for. (Jack Valenti is chiefly famous for his 1982 comment that "The VCR is to the American film producer and the American public as the Boston Strangler is to the woman alone", made at a time when the MPAA was trying to have VCRs outlawed because their only conceivable use was for film piracy). An earlier section referred to CSS as a differential pricing enforcement mechanism, but in fact it's rather more general than that, being in practice a cartel-enforcement mechanism. Through "copy-protection" techniques such as CSS, the DVD consortium can determine who will make players, and on what terms, and who will provide content. If you don't toe the consortium line on issues such as price fixing and differential pricing, you're locked out of the market. If you're a smaller company (for example one from NZ) which doesn't want to subordinate itself to an established content provider, you're locked out of the market. If you don't do what the consortium says, you're locked out of the market. Unlike traditional media such as books, information provided electronically must be interpreted by a special-purpose device (for example a DVD player or computer), and by tying the right to use the content to the viewing device the content provider has complete control not only over the content but also on the devices needed to interpret the content. As a result, even if an independent content provider appears, they can be locked out of the market by ensuring that viewing devices won't play their content. The reason why the DVD consortium was so upset about DeCSS has nothing to do with piracy (since CSS has nothing to do with copy protection), it was because DeCSS allows independent producers to function outside the control of the cartel. This is something which has to be prevented at any cost (the MPAA has to date spent US$4M on the 2600 case alone). Again, Mike Farrance of Tower Records to the US Congress: "All this talk and activity about 'protecting the music' is really about controlling lawful use and cutting retailers out of the marketplace." The current wording of the Copyright Act brings us back to the situation which existed before the Statute of Anne (the original Copyright Act of 1709) was passed, in which the London booksellers' cartel (with the cooperation of the printing guilds) maintained a stranglehold on the market, ensuring that no-one who wasn't a part of the cartel could survive. Authors were paid a flat fee for their work, and the cartel then owned it in perpetuity to do whatever they wanted with it. It wasn't until union with Scotland (whose booksellers weren't part of the London cartel, and who could undercut their prices) in 1707 that the copyright laws were finally reformed. Through various modifications to the copyright laws over time (artists are forced to sign over all rights to their work, copyright laws are rewritten periodically to extended the copyright duration further and further, and provisions such as the DMCA and Section 266 are used to enforce monopolies), we're slipping more and more back into the unfortunate situation which existed before copyright law as we know it existed. Question 12 of Part 4, Section E asks whether existing protection is adequate or needs to be extended further, however the existing wording of the Copyright Act is already excessive and needs to be altered to make it less unbalanced in favour of content providers than it currently is. Firstly, the open-ended wording which allows a content producer to define anything they like as a copyright-protection mechanism needs to be tightened to only cover genuine copyright infringement as any normal person would understand it (the making of illegal copies) rather than whatever the content providers want it to mean (this issue is covered in more detail below). Secondly (and in conjunction with this), section 226 should be removed entirely. Since, with the above change, a clear definition of copyright infringement now exists and is proscribed by the Act, there's no need for a parallel ban on things which might conceivably lead to copyright infringement at some point. Just because most New Zealanders carry with them the "devices or means" to commit sexual offences doesn't mean that they intend to use them in this manner. Section 226 currently criminalises a wide range of legitimate activity, and if actually enforced would make critical actions such as virus scanning, use of protection mechanisms against hacking, security analysis of applications impossible, and review and critique of products by users impossible. Adopting some of the proposed amendments could very well stifle communication, innovation, scientific research, and creativity of New Zealand society as a whole just to maximise the short-term profits of the entertainment industry. (It should be mentioned here that the piracy comments made by the RIAA in relation to services such as Napster are unsupported by CD sales figures. CD sales rose continuously the entire time Napster was in operation, but suffered a massive ~5% overall drop once it was shut down. If the RIAA arguments are to be believed, the figures would have been the exact opposite of that. It's probable that, like MTV, Napster was acting as an advertising service for content providers, providing free samples which induce further CD purchases). Protecting User's Rights Just as the government enacts laws to protect citizens from harm (for example fraud by dishonest people, robbery by criminals), so the Copyright Act needs to be amended to protect citizens from harm by content providers. There is a very simple way of doing this in the Act, which is to make it illegal to sell any technology containing features which prevent fair/reasonable use. Adapting the text of section 226, this would read: [...] (2) The person referred to in subsection (1) of this section is a person who--- (a) Makes, imports, sells, lets for hire, offers or exposes for sale or hire, or advertises for sale or hire, any device or means designed or adapted to prevent fair/reasonable use; or (b) Publishes information intended to enable or assist persons to prevent fair/reasonable use,--- knowing or having reason to believe that the devices, means, or information will be used to prevent fair/reasonable use. Traditional "reasonable use" terms (taken from the Harvard Law School Openlaw list, with typical examples from the established medium of printed books) would include: The right to read the media on any device you can configure to play it. (You can read a book at the table, in bed, on the bus, at work, ...). The right to make a backup copy for archival purposes. (Necessary for information stored on fragile computer media). The right to give or lend your copy to another person, anywhere in the world. (A traditional feature of books for centuries). The right to understand the medium's format and interoperate with it. (Again, necessary for books). The right to read without leaving a permanent record behind. (No book records who read it, or what they read). The right to skip portions that you are not interested in. (Possible with any book). The right to develop, distribute, and use free tools for authoring and encoding into commonly used media formats. (Anyone not living in a totalitarian state has always been free to produce and distribute their own publications). The right to be able to have some use of the work should it be partially damaged as the result of localized media failure, damage, or just random bit flips. (You can read a book even if pages are missing). Free use of a copyrighted item once the copyright has expired. (This goes without saying, and is an established fact of copyright law). This requirement, while simple and sensible, would have the unfortunate side- effect of outlawing much current technology. In other words, if the above are taken as sensible fair/reasonable use terms (as they have been for centuries for books) then much current technology already contains features specifically designed to *prevent* such fair use. Example of each of these include: The right to read the media on any device you can configure to play it (DVD players and disks contain technology - region coding - specifically designed to prevent the disks from being played in any player, even when the user legitimately bought both the disks and player.) The right to make a backup copy for archival purposes (Any copy-protection technology). The right to give or lend your copy to another person, anywhere in the world (Various electronic books, see elsewhere in this submission). The right to understand the medium's format and interoperate with it (Most video and music formats are undocumented, and the Copyright Act prevents you from figuring out the format for yourself. If the manufacturer of your media or player goes out of business or discontinues the product, you're on your own). The right to read without leaving a permanent record behind. (Various interactive media services (many are still being trialled, it's a new field) are interactive mostly for the purposes of recording user's watching habits, usually to allow them to be targeted for marketing purposes but in general the information is available to anyone who'll pay for it). The right to skip portions that you are not interested in. (Again, DVD players contain features specifically designed to prevent users from skipping sections, so that they can be forced to watch commercials at the start of the film they paid to see). The right to develop, distribute, and use free tools for authoring, encoding into, and playing back, commonly used media formats. (The MPAA has spent millions of dollars in legal fees to prevent this, since it would allow independent content providers to operate outside the control of the DVD cartel). The right to be able to have some use of the work should it be partially damaged as the result of localized media failure, damage, or just random bit flips. (Several electronic media types won't be played by players like Windows Media Player if a single bit becomes corrupted. Consider how this interacts with an inability to make a backup copy of the information). Free use of a copyrighted item once the copyright has expired. (No known content-protection technology has this feature. Anything protected in this manner will, effectively, never go out of copyright, despite what the Copyright Act might say. I'll repeat this again because of its importance: No known content-protection technology being fielded today has the ability to comply with this fundamental principle of copyright legislation. The result of this has already been seen with the DivX format which, after selling millions of dollars worth of players and discs, was discontinued on 7 July 2001. All discs, legally purchased by consumers, and all players, also purchased legally, instantly became paperweights. Because of the content-protection technology used in the players, everyone who bought players and movies is now the owner of one or more high-tech doorstops. The same can happen with any content-protected medium). One possible solution which may be proposed is that the Act enumerate all the fair/reasonable use rights granted to the consumer (in other words it defaults to deny- all, with a few restrictive uses granted). Unfortuntely this approach isn't feasible, since it's not possible to enumerate and list all possible types of fair/reasonable use, particularly types which are tied to not-yet- invented future technology. In addition, there are some types of fair use which anyone would regard as too obvious to list, but which content providers will nevertheless deny users (would you, the reader, have imagined before reading this, that a publisher would prohibit their book from being read out loud? How could anyone possibly anticipate such restrictions in advance?). Any legislation must therefore default to allow-all with specific actions (for example piracy, in clearly-defined terms) then being prohibited. Only in this way can consumers' rights be protected from the avaricious behaviour of content providers. An additional "reasonable use" right which needs to be added is necessary for consumer protection purposes: All "content protected media" must be clearly labelled as such, with an indication of the protection mechanism(s) used and the effects it has on consumers (for example "The CD will not play on a computer CD drive"). There are already requirements that media contain labelling to alert consumers (for example "R18", "Violence", "Explicit sexual content", and so on), and warning labels on other products have been standard for a long time ("Hazardous", "Poisonous", "May cause cancer", and so on). The addition of a "Content-protected" warning is a logical extension of this which is necessary to inform consumers of potential problems with the product, and to allow them to make an informed buying decision. As a real-world example of why this is necessary, CDs which have been deliberately damaged at manufacture so they can't play on computer CD players have already been sold overseas, with consumers finding out (after they'd paid for them) that they couldn't listen to them. Since the CD does play on a non- computer CD player (which many people don't have, since they already have a CD drive in their computer), the content provider's position is that it's the consumer's problem. If it doesn't play on their computer CD drive, the consumer should go out and buy a normal CD player. Consumers have little recourse, since the Copyright Act prevents them from employing measures which would allow them to listen to the CD. Clear warning labels on content- protected media of any kind are therefore essential in order to allow consumers to make an informed buying decision. Since this problem arises directly from the Copyright Act, it should be addressed there rather than in an indirect manner via vehicles such as the Fair Trading Act. Piracy Tax Part 4, Section G, "Permitted Acts", paragraph 211 mentions the possibility of a "piracy tax" on blank media (this doesn't appear to be covered by a Question). This again appears to arise from the view that all consumers are criminals, and that the only conceivable use for blank media is copyright infringement. This is far from the truth, as existing piracy taxes in other countries show. Currently two main types of media are taxed, digital magnetic recording tape and CDs. Digital magnetic tape has been used for decades for storing (specifically, backing up) computer data. Although there is an audio Digital Audio Tape (DAT) format, it never took off and apart from use in a minute amount of professional recording equipment isn't used anywhere. However, simply because this format exists, and because it's hypothetically possible to make audio recordings on digital tape, some countries have imposed a piracy tax on all digital tape, even though it's never used to record any kind of audio, let alone pirate commercial recordings (exactly how content providers managed to dupe lawmakers into imposing this levy remains one of the world's unsolved mysteries). Similarly, some countries tax CD media used for storing computer data on the basis that since CDs are also used to store music, the only conceivable use for CD media is to pirate music CDs (the mental stability of someone who would buy a CD recorder and media with a combined cost of several hundred dollars to pirate a music CD which could be bought new for a fraction of that amount doesn't appear to have been an issue when the piracy tax was imposed). In fact it's only recently that CD media marked specifically as suitable for audio use has come on the market, the vast majority of all CD media is used for recording computer data and not for pirating music CDs. Therefore a piracy tax would unfairly penalise the huge majority of users who use them for purposes such as data backups, software companies who distribute their products on CD (practically everything is distributed on CD nowadays), parents sending digital photos of the kids to their grandparents, and any other legitimate user of the technology. Imposing a piracy tax of this form would be akin to imposing a levy on pencil and paper on the assumption that the only conceivable use for these items is to make pirate copies of copyrighted works (no-one would ever use pencil and paper to create their own works, make their shopping list, or some other non-infringing use). For this reason, NZ should not create a piracy tax on blank media, since the majority of users are not pirates, and much of the media covered by the tax can't even (sensibly) be used for piracy purposes. If absolutely necessary, audio-CD-quality media could be taxed (although this again assumes that the only reason anyone would ever record audio is for piracy), but taxing computer media because it resembles audio media is about as sensible as taxing soft drinks because it comes in bottles like alcohol does. It should be noted that although some countries have imposed these media taxes, they are widely regarded by users as being a bad idea since they unfairly penalise all legitimate users (which in practice means almost everyone) and are widely perceived to exist solely to line the pockets of content providers. Miscellaneous Comments Part 4, Section C (starting at paragraph 99) contains a discussion of "broadcasting" and its implications. Because of technological developments since the Copyright Act was written, the definition of broadcasting has become inadequate due to the widespread deployment of wireless networking such as 802.11 wireless LANs, and will become even more problematic once (if) ubiquitous wireless services such as Bluetooth are deployed. The problem with these services is that anything using them is a broadcast (whether the users wish to broadcast the content or not). Although the definition was (presumably) intended to cover conventional radio and TV broadcasting, it also covers the use of any wireless networking device even if it's intended for private use (the fact that any member of the public can also pick up the broadcast is an unintended side- effect of the laws of physics). A redefinition of what constitutes a broadcast seems necessary (redefining the laws of physics is probably not possible as an alternative). Copyright Terms for this Work You may read this work on any type of device, can copy it, can loan it out or give it away, can read it out loud, can skip parts you're not interested in, can comment on it and praise or criticise it, can analyse it, and can use excerpts from it. The only two things you can't do is claim you wrote it, or make it part of a medium which restricts the rights listed above. This work will at some point enter the public domain (or more specifically, fall out of copyright, although the MPAA is working to fix that), at which point you can do whatever you like with it (even claim you wrote it if you feel so inclined). Closing Thoughts "There has grown up in the minds of certain groups in this country the notion that because a man or a corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back, for their private benefit. That is all." - Robert Heinlein, "Life-Line", 1939