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The Link With A $5,000 Fine Attached 24 July 2002 Edition
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How publishing a seemingly harmless link could cost you a cool $5,000

Copyright and digital technology have grown to be uncomfortable bedmates in today's modern hi-tech world.

When it comes to understanding their rights and responsibilities under copyright law, I suspect that most Net users are a little foggy on the details, and it's no wonder -- the Copyright Act is hardly easy or enthralling reading.

Now I should point out that I'm no lawyer and profess to have no better ability than the average websurfer when it comes to interpreting the complex jargon that the Copyright Act is largely composed of -- but in today's column I'm going to do my best to interpret some of the details.

Another big disclaimer: don't take any of the assertions I make here as being deadly accurate. If you're in doubt, go talk to a real lawyer. No warranties are expressed or implied, you act on what's presented here solely at your own risk, etc, etc.

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Can you make a "backup" copy of a legitimately purchased commercial audio CD to use in your car or discman?
No, not according to section 30 which clearly states that "The copying of a [copyrighted] work is a restricted act in relation to every description of copyright work."

This is further emphasized by Section 16 which plainly states that "the owner of the copyright in a work has the exclusive right to ... copy the [copyrighted] work".

However, making such a backup copy doesn't appear to be a criminal act because in section 198 "Criminal Liability...", clause 3 states "Every person commits an offence against this section who, otherwise than for that person's private and domestic use, copies a recording..."

So, based on my layman's interpretation -- it seems that if you make that backup copy and the recording company's goons come a calling, they can take a civil action against you but not a criminal one.

Readers Say
(updated hourly)
  • Copyright and music... - Chris
  • Last bastion?... - Brian
  • Copyright and patent law... - Tom
  • The system failed years ago... - Dominic
  • Copyright or Copy Right!... - Mike
  • Have Your Say

    What about MP3s downloaded from the Net?
    Well as far as I can see, that's also covered by the section referenced above and would similarly be breaching copyright law but might not expose you to criminal prosecution if it was solely for "personal use" -- although the risk of a civil action being brought still remains.

    What About The Sony Paradox?
    Regular readers will recall some time ago that I pointed out the hypocrisy of Sony's position in the market as both a music publisher and the provider of equipment designed specifically for copying that music (a breach of section 30).

    Well it seems that Sony, and all the other vendors of CDR/RW drives, cassette recorders, and other audio recording devices may well fall foul of section 37 of the Act. This section makes it clear that the importation, sale, hire or in some cases mere possession of any device "specifically designed or adapted for making copies" of copyrighted works is a breach of the Act.

    Given that Sony have been promoting their MD player as a device that "enables users to transfer the entire contents of a CD onto MiniDisc in just minutes" then I'd say this would appear to be a breach of this section of the Act.

    What about copying computer software?
    Section 80 of the Copyright Act allows users to backup their copyrighted computer software -- unless the vendor expressly forbids it. Copying for any other purpose is obviously disallowed and a breach of the law.

    What about bypassing copy-protection schemes?
    With the recording industry placing greater reliance on copy-protection schemes it's worth seeing what the Act says about the circumvention of such systems.

    Section 226 has plenty to say about this issue and seems to parallel aspects of the US DMCA. It seems that anyone who "makes, imports, sells, lets for hire, offers or exposes for sale or hire, or advertises for sale or hire" such a devilish device as a black marker pen is in breach of the law here in New Zealand.

    But wait, it gets worse!

    If I were to publish information on how to use the said black marker pen to circumvent the copy protection found on some audio CDs (as many US-based publications have done), then I'd be in breach of the NZ Copyright Act as well. This little section of the Act is a killer and every bit as draconian as the equivalent parts of the Digital Millennium Copyright Act.

    What about pirating Sky TV?
    If you were thinking of using that (now) well known piece of software that decodes Sky TV's UHF service for free then you might want to think again.

    Section 227 makes specific reference to the "Offence of fraudulently receiving programmes" and includes provisions just as draconian as the one relating to copy protection.

    If I were to publish a link to that particular program, I would undoubtedly be in breach of section Section 228.3.b of the act which makes it illegal to publish "any information that is calculated to enable or assist persons to receive the programmes or other transmissions when they are not entitled to do so."

    My goodness -- this smacks of the 2600/DeCSS fiasco in the USA doesn't it?

    Yes, posting such a link could earn you a fine of up to $5,000 -- and who said the Net was the last bastion of free expression?

    However, things are not quite so simple in the world of the Internet.

    After all, if I were to include that link in this column, I would not actually be publishing the information in New Zealand would I? Remember, Aardvark is hosted in the USA and it is from that US-based webserver that its pages are created, served and therefore "published".

    But hang on a minute, didn't I admit that I'd played around with the program in question? Haven't I broken the law?

    Fortunately, thanks to my privileged position as a commentator, researcher and news reporter, and given that I was just checking on the claims made by others for the purpose of review and news reporting, I'm probably entitled to the protection of Section 42 and Section 43. Plus, I was also a Sky TV subscriber at the time which implies an "entitlement" to receive those broadcasts.

    I hope today's column has woken you up to the fact that NZ's copyright laws are actually more restrictive than those of the USA. At least over there they have a "fair-use" provision that allows them to make backups of their audio CDs without risking a civil prosecution by the recording industry -- we don't even have that right.

    I also hope you realise now that the copyright act is an incredibly powerful piece of legislation that includes provisions that are far more heavy-handed than many people realise. I bet you didn't know about that $5,000 fine for publishing a link that might be a breach of Section 228 for instance.

    Perhaps its time that you decided whether the Copyright Act is now too onerous, and ask why otherwise law-abiding Kiwis should be forced to breach it simply in order to back up their valuable music CDs so as to protect what could be a very significant investment in commercial recordings. Or even whether the Act should be allowed to infringe our own rights to freedom of speech and access to information.

    If there are any *real* lawyers out there, I'd certainly appreciate corrections to, or comments on, this rather simplistic interpretation of the relevant aspects the Copyright Act.

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