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Copyright Act must change

12 November 2019 | news

New Zealand’s Copyright Act 1994 is no longer fit for purpose, and New Zealand’s universities are calling for major changes to reflect the changing educational landscape.

Current New Zealand copyright legislation was drafted before technology was routinely used in class. Its use was limited to showing a videotape in class or playing a cassette tape. Technology has moved on, but our legislation has not kept up.

We are now well behind countries like the US, and it’s getting in the way of how we teach and research and who we can teach and research with. 

Countries like the US allow flexible exceptions. This means that as technology develops, it is much more likely that new methods of teaching and research can be undertaken without breaking the law.

What can't we do?

This can be seen through the following scenarios—none of which are permitted under current legislation in New Zealand, but which may be permitted in other parts of the world that have either broadened their exceptions or moved to ‘fair use’ type provisions.

  • Problem 1: The education exceptions in NZ copyright legislation only apply to staff and students of a particular university. Many universities support their local high schools by delivering parts of the science curriculum when schools don’t have suitably qualified teachers. University Lecturers can play, perform and show their students copyright protected content when teaching students enrolled at university, but can’t use that same material when providing online support to students in schools, because high school students are not students of the university. The same sorts of limits apply around universities providing free community education courses, or training to local employers.
  • Problem 2: Copyright exceptions in the legislation allow students to gather material from any source for their private study or research – including copyright-protected pictures and videos freely available online. They can do this for class assignment and share it with their teacher without breaching copyright. However, they can’t share their assignment with the rest of the class or include it in online portfolios that students share with future employers to demonstrate the quality of their work.
  • Problem 3: A similar problem exists with many of the research projects undertaken for master’s and doctoral degrees. If someone else’s copyright-protected material is included in a thesis, it can’t be shared or accessed by anyone outside the university unless the copyright holder has given explicit permission. This is can be expensive and time-consuming for student to arrange, so they may choose to remove the content rather spend time or money securing the rights. This makes a lot of potentially useful research unavailable to future researchers and the public.
  • Problem 4: A teacher may play a commercial DVD to their class during a lecture, but if it contains copyrighted material, that material must be edited out of any recording of the lecture. This makes it difficult for students who are ill or otherwise unable to attend the lecture to catch up.
  • Problem 5: A similar problem exists with universities being able to provide students with access to pre-reading materials—things that students are expected to read and understand before they start their studies—and therefore typically before they have formally enrolled as a student of the institution. Universities can’t currently share material legally with these future students.
  • Problem 6: The legislation makes the legality of sharing third party content as part of research collaborations uncertain. For example, a New Zealand researcher may be part of an international research team. They may have access to a particularly relevant and useful publication based on New Zealand research, but if the publication is behind a paywall, they can’t be sure that every other researcher has the necessary rights to access that content.
  • Problem 7: A teacher may want to include historic content in a teaching resource to be shared with teachers from various schools. It may be an article from a university or government publication from last century. Even though the university or government department may be happy to approve the use of the content, the teacher can’t use it without getting the approval of the article’s author or their estate. This is typically either impractical or impossible, so much potentially useful historic material is languishing unused in libraries and archives.
  • Problem 8: A university library may own a copy of a long-out-of-print commercially obtained recording (for example, in an obsolete format such as a VHS or cassette tape). The university may make a digital copy to replace the original but is only allowed to let one user access it at a time. This makes it impossible for teachers to put copies of old recordings online for class teaching purposes, as they can’t guarantee just one student will be accessing it at any given point in time. This makes historic recordings unavailable for teaching purposes.

Most of these problems are a consequence of the world’s rapid shift to the use of online technology over the past decade. Most teaching and research is now done on line.

Universities argue for changes

As buyers, users, creators and publishers of content, universities are uniquely placed to argue for a more balanced copyright law.

“What we need are flexible exceptions that satisfy the public interest in teaching and research, while protecting economic incentives for rights owners,” says University of Auckland copyright specialist Melanie Johnson.

The United States has long relied on ‘fair use’ to enable new uses as technology evolves. Such a provision would go some way to address some of the problems we are facing in New Zealand. This model has been subsequently adopted by a range of other countries. Other countries such as Canada have retained the ‘fair dealing’ model, but left the types of uses open so new uses not yet envisaged can be accommodated.

In the US, something qualifies as ‘fair use’ if four factors are satisfied;

  • the purpose and character of the use – has the material been used to help create something new or merely copied verbatim into another work. Educational use may qualify if the work is subject to commentary or review.
  • the nature of the work used – was it factual and published?
  • the amount and substantiality of the work used – this would be satisfied if, for example, the material was a few paragraphs from an article, or a few pages from a book.
  • the effect of the use on the potential market for or value of the work used – this would be satisfied if, for example, if use did not significantly harm the copyright owner’s earnings.

Current New Zealand copyright legislation is more prescriptive in what is and isn’t allowed—the exemptions allowed have just not kept pace with changes in technology and ways of teaching and working.

Those changes will only accelerate as the digital economy gives New Zealand companies the chance to increase ‘weightless’ exports. “And our copyright and intellectual property legislation must change to facilitate this,” says Melanie.

Text and data mining, for example, is a rapidly developing research area. “Massive storage capacity, powerful data manipulation techniques and graphical capabilities are revolutionising basic research and how the resulting knowledge is disseminated,” says Melanie.

But it’s a grey area under the current Act—one that universities want to see clarified.

The current review of the Act has been delayed, and universities want a flexible approach that would keep pace with changing technologies. “If a prescriptive approach is taken again, then—with fast-paced changes in technology—the Act would be out of date by the time it is in force!”

It’s not a complete solution, but neither is the current situation, where, increasingly, there are uses not covered by exceptions in the Act or available licences, but which are socially beneficial and do not harm rights owners.

“Over-protective legislation runs the risk of inhibiting the creation and dissemination of copyright works, and the production of new works based on existing ideas. The changes we are seeking will benefit not only our staff and students but the wider community.”