Copyright and its digital challenge : a comparison of New Zealand and German copyright law

Abstract

This thesis focuses on a comparison of New Zealand and German copyright law. Nevertheless, in respective contexts, reference is made to particular aspects of foreign law. This is due to the common approach taken by New Zealand and other Commonwealth countries where similar provisions and comparable case law are seen as influential in other jurisdictions. However, this practice is not followed in Germany, where one could hardly find a case that refers to foreign case law (except the European Court of Justice). The reason behind this different approach might be that, firstly, Germany (with a population of more than 82 million) has a sufficient amount of national case law and academic writing contrary to the smaller number of law publications in New Zealand (with around 4 million citizens). Secondly, Germany has a language that is common only with Austria and parts of Switzerland contrary to hundreds of million of English speaking people throughout the world. Finally, the German law does not have the same legal roots in common with other states unlike New Zealand, Australia, Canada, the United States and the United Kingdom. Since Australian and New Zealand copyright law has a common origin in English law and since both countries legislation still has much in common, the Australian approach can often be considered as a starting point. The law of the United States of America and of Canada sometimes provides interesting aspects, too. Similarly, in the context of German law, other European countries legal systems as well as EU directives are considered. The current law of the United Kingdom lies somewhere between New Zealand law (due to the history) and German law (due to the EU directives).

The first part (chapter 2) of the thesis provides an introduction to New Zealand copyright and German copyright (“Urheberrecht”). The history and the fundamentals should give the reader a brief overview of and an insight into both legal systems. Since it is unlikely that readers are professionals in both legal systems, this introduction might be helpful for understanding the subsequent analyses.

Chapter 3 surveys selected aspects of copyright and its digital challenge. In particular, common internet activities like creating and hosting a website, browsing on the internet, hyper-linking and data transmissions by internet service providers are analysed from a legal point of view. For better understanding, every chapter includes a short explanation of the respective technical process.

Chapter 4 gives an overview of typical digital copyright infringements, known as piracy, provides statistical figures regarding the extent of piracy, and analyses the consequences.

Chapter 5 deals with copyright protection measures. Present technological protection measures are described, and the legal support for technological protection measures is reviewed.

The fifth part of this thesis (chapter 6) focuses on the balance between technological protection measures and permitted uses. As already mentioned in the introduction, technological protection measures have an extensive factual impact on legally permitted uses. This chapter surveys and discusses solutions to control, restore and ensure a fair balance between technological protection measures and permitted uses.

The last part (chapter 7) evaluates the legislative systems of both countries with regard to copyright law and provides a brief summary. [from 1.2 Approach and emphases of this thesis]