Yesterday, I blogged about New Zealand’s new DMCA-style copyright legislation, saying that it mirrored the US Digital Millennium Copyright Act. Copyfighting law prof Michael Geist sets me straight — the Kiwis put one over on old Uncle Sam, crafting an anti-circumvention rule that’s “probably the best anti-circumvention implementation anywhere in the world with a complete exclusion of access controls (ie. region coding), a positive right to circumvent for permitted acts, and even a system to allow ‘qualified persons’ to circumvent on behalf of those less technologically adept. ”
On the anti-circumvention front, there are several things to note:
* the technological protection measures (TPMs) expressly exclude access controls such as region coding. In other words, the anti-circumvention provisions do not apply to devices that “only controls access to a work for non-infringing purposes.”
* the legislation targets anti-circumvention devices, but excludes those devices that have something more than “limited commercially significant applications” other than circumventing a TPM.
* the law prohibits making, selling, distributing, advertising, or offering a circumvention device if the person “knows or has reason to believe that it will, or is likely to, be used to infringe copyright.” The inclusion of a knowledge requirement creates an additional safeguard against overbroad application of the provision.
* most importantly, the law clearly permits circumvention for “permitted acts”, which effectively preserves fair dealing rights (the statute also specifies the right to circumvent for encryption research). More impressive, the law includes a system to facilitate circumvention for permitted acts in the event that users are unable to circumvent a TPM themselves. In such cases, the law allows a “qualified person”, which includes librarians, archivists, and educational institutions, to circumvent a TPM on behalf of a user (the user can also ask the copyright owner to unlock the work for them).
See also: New Zealand bends over and offers up a DMCA to America with a shy, desperate smile