Microsoft tells NZ to toughen up on pirates

By ADAM GIFFORD

Software giant Microsoft wants New Zealand courts given the power to impose statutory damages on software pirates.

In its submission to a Ministry of Economic Development discussion paper on whether the Copyright Act 1994 needed to be changed to take digital technology into account, Microsoft called for stricter criminal enforcement measures against makers or sellers of pirate software, including sentencing guidelines and awards for damages.

But copyright law expert Ken Moon, a partner in Wellington firm A.J. Park, said software piracy was already a criminal act.

"In one or two parts of the country there is someone in the police interested, but overall it's a low priority and it's hard to see that making further changes would affect that.

"The police would say they're too busy dealing with other sorts of crime," Mr Moon said.

Microsoft has in the past argued that the cost of going after sellers of pirate software can be many times what a copyright holder can expect to get back, so such a change would benefit smaller software companies.

Microsoft New Zealand managing director Geoff Lawrie said the digitisation of copyrighted works had made unlawful copyrighting and distribution easier, while the global market created by the internet had made intangible goods such as software increasingly vulnerable to software piracy.

Other Microsoft recommendations include changing the law to cover situations where people have temporary, short-term rights to access digital material, such as pay per use arrangements and making internet service providers (ISPs) liable for online infringement, requiring them to remove or block any material that is challenged.

It also wants the outlawing of devices, either mechanical or software-based, that circumvent copyright.

Mr Moon said that in his view temporary copies were already covered by the act. "It's a bit of an issue because it is not specifically mentioned, and many people are seeking clarification."

It was also illegal to provide or sell devices or software to circumvent copyright, although it was not unlawful to use such devices.

In the circumvention debate Microsoft is lining up behind the major music companies and film studios, who are fighting a public wanting to access content on a range of digital devices.

Mr Lawrie said copyright owners were increasingly resorting to technological measures and digital rights management to control how their product was used.

"But some more nefarious operators have devised software and hardware devices designed to circumvent these technological protection measures."

Mr Moon said New Zealand was reviewing the act because some existing provisions did not comply with international copyright and performance protection treaties drawn up by the World Intellectual Property Organisation in 1996, which aim to address the implications of digital technology and the internet for copyright and related rights.

The 1994 act is largely drawn from the United Kingdom Copyright, Designs and Patents Act 1988.

Mr Moon said some parts were untidy, but he did not believe a major rewrite was necessary.