ISP liability for copyright infringement is arguably increased under the new regime. The bill requires every ISP to have a policy that provides for termination of a user's account where that user repeatedly infringes the copyright in a work using the ISP's services. With such a policy in place, the bill provides that no ISP will be liable merely because a person uses the ISP's services to infringe copyright.

An ISP will also not be liable for storing material that infringes copyright unless the ISP knows or has reason to believe the material infringes copyright and does not delete the material after becoming aware of the infringement.

The difference between storage and caching is recognised and provided for in the bill. Caching is the short-term storage of data. It enables ISPs to transmit material more efficiently by temporarily placing data, or a copy of it, in a location where it can be accessed faster than normal. The bill provides that an ISP does not infringe copyright in a work by caching if it:

• does not modify the material;
• complies with any conditions of the copyright owner;
• does not interfere with the lawful use of technology to obtain data on the use of the material; and
• updates the material in accordance with reasonable industry practice.

However, an ISP will infringe copyright in material if it does not delete or prevent access to it by users as soon as possible after becoming aware that the material has been deleted or blocked at its original source.

Educational establishments are permitted to store a copy of a work that is available on a website if the material is stored for an educational purpose and it:

• is displayed under a separate frame or identifier;
• identifies the author (if known) and source of the work;
• states the name of the educational establishment and the date on which the work was stored; and
• is restricted to use by participants in the course of instruction.

Sound recordings may be copied into other formats for personal use. However, this does not apply to other audiovisual media such as videos. This widespread practice of copying sound recordings into digital formats (for example, for i-pods and mp3 players etc) will not infringe copyright if:

• the copy is made from a legitimate sound recording;
• the sound recording is not borrowed or hired;
• the copy is for the private and domestic use of the owner or members of their household;
• only one copy is made for each device that the owner uses for playback; and
• the owner of the sound recording retains ownership of the original and any copies made.

The rule does not apply to copying that is inconsistent with a contract that specifies the circumstances in which the sound recording may be copied. Activities such as CD copying or online file sharing will continue to be an infringement of copyright.

Users of computer programs expressed in low level language may now decompile the computer program:

• where the decompilation is necessary for creating another independent program and the program is only being decompiled for that purpose and is not substantially similar to the decompiled program;
• where it is necessary for the lawful use of the program, for example to correct an error in the program, and a properly-functioning and error-free copy of the program is not available within a reasonable timeframe at the ordinary commercial price; and
• for the observation, studying or testing of a computer program, provided it is done in order to determine the principles and ideas that underlie any element of the program.

Certain contractual terms are deemed to be of no effect if they prohibit or restrict the study, observation or testing of a program in order to determine its underlying principles.

Technological Protection Measures (TPMs) are measures designed to counteract copyright infringement activities. The most commonly recognised TPMs are those built on to music CDs and DVDs that prevent copying by what the bill describes as "circumvention devices", more commonly known as TPM spoilers.

The sale or hire of these circumvention devices is made illegal as well as the actions that lead to the potential sale or hire of them such as making or importing them. The bill creates an offence for those who enable or assist others to circumvent TPMs.

The actual circumvention of a TPM device is not prohibited. Exceptions are provided for to allow certain categories of people, including librarians or archivists, to circumvent TPMs in order to copy the work for their legitimate purpose.

To access a copy of the Amendment Act and for further details visit the Ministry of Economic Development's website at www.med.govt.nz