Copyright (New Technologies and Performers' Rights) Amendment Bill
Part One: Background and Context
Finally we have some movement on the revision of New Zealand's copyright laws with the arrival in the house of the "Copyright (New Technololgies and Performers' Rights) Amendment Bill."
The time taken to revise laws means we're not going to get another chance to improve our copyright law here in New Zealand any time soon so its important that any changes position New Zealanders strongly.
If anything is certain, it is that new technologies are going to continue to challenge our understanding of content and the existing distribution channels are going to fight to retain the status quo as much as possible, so we, as consumers and voters need to be ready to fight back.
This is going to be a long post as its going to take a fairly detailed look at what is proposed, in order to manage the length, I'll post it in several sections focusing on the key aspects of the Bill.
Background and Context
In July 2001 the Ministry of Economic Development released Digital Technology and the Copyright Act 1994: A Discussion Paper. The intention was to canvas opinions on three questions:
- Is there a need to amend the Copyright Act 1994 in light of developments in digital technology and the Internet? If so, what are the key issues that should be addressed?
- What changes should be made (if any) to ensure that copyright regime continues to provide an appropriate balance between the interests of copyright owners and users?
- Should New Zealand implement the requirements of the WIPO Copyright Treaty 1996 and those aspects of the WIPO Performances and Phonograms Treaty 1996 that relate to the rights of phonogram producers, and ultimately accede to those treaties? If so, what changes need to be made to the Copyright Act 1994 over and above those required by the Treaties?
The need to consider the impact of technology was explicit in both the title of the paper and the focus in its contents on specific issues. These included the rights to communicate copyright works over the internet, liability of Internet Service Providers (ISPs), the use of Technologial Prevention Measures (TPMs), protection of databases, and, most relevant to the average consumer, whether new exceptions or permitted uses were appropriate as a consequence of technolgical innovation.
Five and half years later we finally have a bill before Parliament getting its first reading. The time take is an issue when you think about the range of new issues that have arisen - projects like Google books, new services like Flickr and YouTube, but it also gives us a valuable set of international experiences as the US grapples with the DMCA, Australia with the consequences of dealing with the devil (AKA the Free Trade Agreement with the US) and the UK struggles with the interface between the English and European copyright traditions.
Its interesting that the Bill starts with this statement: "Copyright is a property right that exists in original works." This is a key part of the Copyright Act 1994 and is required if copyright is to draw upon the legal traditions of property law. Don't make the mistake of thinking that the key word is "original", even more so than ever under a digital world this term is legally almost meaningless. Despite phrases in the Bill's reamble like "The key principle that guides copyright reform in New Zealand is the enhancement of the public interest" copyright law is an economic law primarily and in our English tradition the presumption that the public interest is best served by promoting financial growth is both explicit and implicit.
As with all law, you need to read all of the clauses and statements like "the Act seeks to provide incentives to ensure the creation, production, and distribution of new creative works in a manner that meets society's needs" are placed in a context that protects the economic status quo: "It is not intended to change the balance between protection and access already established in the Act." This is absolutely not an attempt to create a legal system reflecting the political movements for free and open information.
In the Bill's Regulatory impact statement the motives of the Government are expressed directly.
"With the development of digital technology, 3 problems arise:
- there is increased risk of the production and distribution of high quality infringing copies of copyright works;
- there is a significant degree of uncertainty regaring the application of provisions of the Act to digital works;
- the Act is not consistent in all areas with our major trading partners and with emerging international standards."
For "major trading partners" I assume we are meant to read the US. Given the way they use trade laws to protect their own internal markets from NZ goods and services I fail to understand why we should help them make money from their dominance of the information economy in New Zealand in any way not actually required by our treaty obligations. Australia is now discovering the hooks within the free trade agreement they signed with the US and consequently their consumers are suffering while their legislators passively offer the treaty as an excuse for inaction.
Its interesting to see the Regulatory impact statement focuses in some detail on the economic imapct of infringement.
"... industry figures suggest significant annual losses (music industry: US$4.3 billion worldwide; NZ$114 million in New Zealand; computer industry: US$11 billion worldwide; motion picture industry: US$3 billion for the US, US$4 million for New Zealand)"
This repeats the time-worn whines of the existing media companies despite there being significant criticism of the accuracy of these figures and the considerable debate over impact of copying on music sales as opposed to an industry slump in the publishing of popular music for purchase. The information also appears to be significantly out of date as the music figure appears to come from 2002 and the movie figure appears to date from 2004.
Much of the economic damage from music and movie piracy also appears to arise from the production and sale of counterfeit CDs and DVDs, something that is already easy prosecuted under the existing laws and of no relevance to digital copyright whatsoever. Its worrying to see the Government serve up industry propaganda as fact in this way and it suggests a passive acceptance of the position stated by commercial interests rather than a deeper analysis of the facts.
In the next posts I'm going to pick up on some key sections of the proposed Bill:
One might wish that the passive acceptance of "industry research" was a little less rampant.Yes - as I noted its even worse when its old industry data (and presented in a way that conceals its actual meaning). This will be a significant point in the submission to the Select Committee.