Copyright (New Technologies) Amendment Act 2008

90 New heading and new sections 226 to 226J substituted

• Section 226 and the heading immediately above section 226 are repealed and the following heading and sections substituted:

  “Technological protection measures

  “226 Definitions of TPM terms

  • In sections 226A to 226E, unless the context otherwise requires,—

    “TPM or technological protection measure—

    • “(a) means any process, treatment, mechanism, device, or system that in the normal course of its operation prevents or inhibits the infringement of copyright in a TPM work; but

    • “(b) for the avoidance of doubt, does not include a process, treatment, mechanism, device, or system to the extent that, in the normal course of operation, it only controls any access to a work for non-infringing purposes (for example, 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 non-infringing copy of a work)

    “TPM circumvention device means a device or means that—

    • “(a) is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of a technological protection measure; and

    • “(b) has only limited commercially significant application except for its use in circumventing a technological protection measure

    “TPM work means a copyright work that is protected by a technological protection measure.

  “226A Prohibited conduct in relation to technological protection measure

  • “(1) A person (A) must not make, import, sell, distribute, let for hire, offer or expose for sale or hire, or advertise for sale or hire, a TPM circumvention device that applies to a technological protection measure if A knows or has reason to believe that it will, or is likely to, be used to infringe copyright in a TPM work.

    “(2) A person (A) must not provide a service to another person (B) if—

    • “(a) A intends the service to enable or assist B to circumvent a technological protection measure; and

    • “(b) A knows or has reason to believe that the service will, or is likely to, be used to infringe copyright in a TPM work.

    “(3) A person (A) must not publish information enabling or assisting another person to circumvent a technological protection measure if A intends that the information will be used to infringe copyright in a TPM work.

  “226B Rights of issuer of TPM work

  • “(1) This section applies if a TPM work is issued to the public by, or under licence from, the copyright owner.

    “(2) The issuer of the TPM work has the same rights against a person who contravenes section 226A as a copyright owner has in respect of an infringement of copyright.

    “(3) The issuer of the TPM work has the same rights under section 122 (order for delivery up in civil proceedings) or 132 (order for delivery up in criminal proceedings) in relation to a TPM circumvention device as a copyright owner has in relation to an infringing copy.

    “(4) Sections 126 to 129 (which relate to certain presumptions) apply in relation to proceedings under this section.

    “(5) Section 134 (order as to disposal of infringing copy or other object) applies, with all necessary modifications, in relation to the disposal of anything that is delivered up under subsection (3).

  “226C Offence of contravening section 226A

  • “(1) A person (A) commits an offence who, in the course of business, makes, imports, sells, distributes, lets for hire, offers or exposes for sale or hire, or advertises for sale or hire, a TPM circumvention device that applies to a technological protection measure if A knows that it will, or is likely to, be used to infringe copyright in a TPM work.

    “(2) A person (A) commits an offence who, in the course of business, provides a service to another person (B) if—

    • “(a) A intends the service to enable or assist B to circumvent a technological protection measure; and

    • “(b) A knows that the service will, or is likely to, be used to infringe copyright in a TPM work.

    “(3) A person (A) commits an offence who, in the course of business, publishes information enabling or assisting another person to circumvent a technological protection measure if A intends that the information will be used to infringe copyright in a TPM work.

    “(4) A person who commits an offence under this section is liable on conviction on indictment to a fine not exceeding $150,000 or a term of imprisonment not exceeding 5 years or both.

  “226D When rights of issuer of TPM work do not apply

  • “(1) The rights that the issuer of a TPM work has under section 226B do not prevent or restrict the exercise of a permitted act.

    “(2) The rights that the issuer of a TPM work has under section 226B do not prevent or restrict the making, importation, sale, or letting for hire of a TPM circumvention device to enable—

    • “(a) a qualified person to exercise a permitted act under Part 3 using a TPM circumvention device on behalf of the user of a TPM work; or

    • “(b) a person referred to in section 226E(3) to undertake encryption research.

    “(3) In this section and in section 226E, qualified person means—

    • “(a) the librarian of a prescribed library; or

    • “(b) the archivist of an archive; or

    • “(c) an educational establishment; or

    • “(d) any other person specified by the Governor-General by Order in Council on the recommendation of the Minister.

    “(4) A qualified person must not be supplied with a TPM circumvention device on behalf of a user unless the qualified person has first made a declaration to the supplier in the prescribed form.

    “(5) In this section,—

    “archive has the same meaning as in section 50(1)

    “archivist includes a person acting on behalf of the archivist

    “encryption technology means the scrambling and descrambling of information using mathematical formulae or algorithms

    “librarian includes a person acting on behalf of the librarian

    “prescribed library has the same meaning as in section 50(1).

    “(6) In this section and in section 226E, encryption research means identifying and analysing flaws and vulnerabilities of encryption technology.

  “226E User’s options if prevented from exercising permitted act by TPM

  • “(1) Nothing in this Act prevents any person from using a TPM circumvention device to exercise a permitted act under Part 3.

    “(2) The user of a TPM work who wishes to exercise a permitted act under Part 3 but cannot practically do so because of a TPM may do either or both of the following:

    • “(a) apply to the copyright owner or the exclusive licensee for assistance enabling the user to exercise the permitted act:

    • “(b) engage a qualified person (see section 226D(3)) to exercise the permitted act on the user’s behalf using a TPM circumvention device, but only if the copyright owner or the exclusive licensee has refused the user’s request for assistance or has failed to respond to it within a reasonable time.

    “(3) Nothing in this Act prevents any person from using a TPM circumvention device to undertake encryption research if that person—

    • “(a) is either—

      • “(i) engaged in a course of study at an educational establishment in the field of encryption technology; or

      • “(ii) employed, trained, or experienced in the field of encryption technology; and

    • “(b) has either—

      • “(i) obtained permission from the copyright owner or exclusive licensee of the copyright to the use of a TPM circumvention device for the purpose of the research; or

      • “(ii) has taken, or will take, all reasonable steps to obtain that permission.

    “(4) A qualified person who exercises a permitted act on behalf of the user of a TPM work must not charge the user more than a sum consisting of the total of the cost of the provision of the service and a reasonable contribution to the qualified person’s general expenses.

  “Copyright management information

  “226F Meaning of copyright management information

  • In sections 226G, 226H, and 226J CMI or copyright management information means information attached to, or embodied in, a copy of a work that—

    • “(a) identifies the work, and its author or copyright owner; or

    • “(b) identifies or indicates some or all of the terms and conditions for using the work, or indicates that the use of the work is subject to terms and conditions.

  “226G Interference with CMI prohibited

  • “(1) A person (A) must not remove or modify any copyright management information attached to, or embodied in, a copy of a work.

    “(2) However, subsection (1) does not apply if—

    • “(a) A has the authority of the copyright owner or the exclusive licensee to remove or modify the copyright management information; or

    • “(b) A does not know, and has no reason to believe, that the removal or modification will induce, enable, facilitate, or conceal an infringement of the copyright in the work.

  “226H Commercial dealing in work subject to CMI interference

  • “(1) A person (A) must not, in the course of business, make, import, sell, let for hire, offer or expose for sale or hire, or advertise for sale or hire, a copy of a work if any copyright management information attached to, or embodied in, the copy has been removed or modified without the authority of the copyright owner or the exclusive licensee.

    “(2) However, subsection (1) does not apply if—

    • “(a) A has the authority of the copyright owner or the exclusive licensee to remove or modify the copyright management information; or

    • “(b) A does not know, and has no reason to believe, that the removal or modification will induce, enable, facilitate, or conceal an infringement of the copyright in the work; or

    • “(c) A does not know, and has no reason to believe, that any copyright management information attached to, or embodied in, the copy has been removed or modified without the authority of the copyright owner or the exclusive licensee.

  “226I Contravention of section 226G or 226H

  • A copyright owner or licensee of a work has the same rights in relation to a contravention of section 226G or 226H as a copyright owner has in respect of an infringement of copyright.

  “226J Offence of dealing in work subject to CMI interference

  • “(1) A person (A) who contravenes section 226H commits an offence if—

    • “(a) A knows that the copyright management information has been removed or modified without the authority of the copyright owner or exclusive licensee; and

    • “(b) A knows that dealing in the work will induce, enable, facilitate, or conceal an infringement of the copyright in the work.

    “(2) A person who commits an offence under subsection (1) is liable on conviction on indictment to a fine not exceeding $150,000 or a term of imprisonment not exceeding 5 years or both.”