by Hugh Stephens — 08 Mar 2018
Copyright law is constantly under review–and that is a good thing–although the constant attack on the fundamental basis of copyright is, frankly, getting tiresome and dangerous. Last year Australia’s Productivity Commission undertook a major study of IP Down Under. Most of its “slash and burn” recommendations with regard to so-called “copyright reform” were wisely shelved by the Australian Government. Canada is currently just embarking on a mandated five-year review of its copyright law, with anti-copyright elements already gearing up for another attack on a regime which has already widened fair dealing exceptions beyond the level of sustainability for the publishing industry. Now New Zealand is preparing to embark on its own review and in preparation, InternetNZ, which styles itself as “a not for profit membership organisation…(that works)… to support the benefits of the Internet for New Zealand in a range of ways…”, has launched a glossy discussion paper titled “Getting Copyright Right in the Information Age”. As the title suggests, InternetNZ starts from the premise that the current copyright regime is not “right” for the Information Age, but rather “wrong”. This underscores the fundamental problem with the document.
As is a common practice with discussion papers that seek fundamentally erode, disable, or minimize the protection of content afforded by copyright, the authors start out by putting their hands on their hearts and proclaiming for all to hear that they are 100% supportive of copyright protection.
“We want to see New Zealand’s copyright laws continue to provide
New Zealand creators with internationally recognised, world class copyright
over their creative works”.
So far, so good. But then, this;
We believe that New Zealand’s Copyright Law has not stood the test of time and that New Zealand deserves fair, balanced law that reflects the ways that New Zealanders use the Internet to access, consume and protect copyright works”.
In other words, InternetNZ is starting from the premise that copyright in New Zealand, and the laws that they insist they want to see continue to protect New Zealand’s creators, are “unfair” and “unbalanced”. This paper is all about standing copyright on its head. Instead of providing the creator with protection, and making the assumption that a work cannot be used unless the user has either obtained permission or the use falls within the parameters of specified fair dealing, InternetNZ’s approach is to assume that it is fair game to use any and all content subject only to very minor limitations. As the paper itself brags, InternetNZ wants to change “no by default” to “yes by default”. It then sweeps this all under the entirely new concept of “permissionless innovation”. It is hard to think of a more chilling concept for creative workers than one that would sacrifice any rights they have in their hard-earned works to the altar of innovation. This approach completely undermines the concept of intellectual property as property, and the right of a creator to decide where, how and on what basis their work can be widely used.
There are already numerous legal exceptions to allow users to use portions of copyrighted works without obtaining permission. Such exceptions are well established in New Zealand law, as they are in the law of virtually every country that protects creativity, subject to some minimum standards laid down by international copyright treaties. As such, fair dealing exceptions are an integral part of copyright protection. Creators themselves build on the knowledge and expressions of ideas of previous creators. The point of copyright is really two-fold; to encourage the further creation of content and expansion of knowledge and to provide the possibility of a financial incentive to creators to continue to create more content. It is not about restricting or reducing access to knowledge or content; just the opposite. Yet to undermine the fundamental principle that copyrighted content (expressions of ideas but not the ideas themselves) should be belong to those who created it and/or who hold the rights–subject to limited statutory exceptions– and to allow that content to be hijacked in the name of technological innovation, is to defeat the very purpose of copyright, which is to incentivize the creation of more content. Since it is politically incorrect to say that you don’t actually believe in copyright (although the Australian Productivity Commission came very close to doing this), InternetNZ has avoided this step. Instead, they have damned with faint praise and proposed solutions that would weaken and undermine the very concept they profess to support.
This is best illustrated by the paper’s proposal that New Zealand adopt the US “fair use” doctrine. Again, on its surface, this is a seemingly attractive proposal. The US is generally recognized to have an advanced copyright system which, although not perfect, has both protected creators and encouraged innovation. If fair use is good for the US, it must be good for New Zealand, or Australia, or Canada or wherever, or so goes one line of argument. Except that each jurisdiction has its own copyright heritage and history, and what can work reasonably well in one context, may not transfer well to another.
Fair use is a good example of this. In the US, it depends on a long history of court decisions that have examined what is a fair use against the criteria established by Congress. Litigation is the rule, not the exception, because of the varied circumstances against which each fair use case must be decided. As I noted in a blog last year when discussing the recommendation of Australia’s Productivity Commission to introduce fair use to Australia;
“The solution proposed, to introduce a US-style fair use defence (but without the legal precedents and history of over a hundred years of testing in courts of law), is guaranteed to create a lack of clarity over what is, and what is not, legal use. The US system is so fraught with complexities and legal uncertainties that the US Copyright Office hosts a “Fair Use Index” on its website designed to “to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions.” Once you have figured out which of the thirteen court circuits and which of 16 categories to search in, you can find a list of cases that either ruled for or against fair use, or in some cases reached a mixed result. But this listing does not provide a definitive interpretation, only a guide—so if you are planning on using the index to tell you whether or not your intended use is “fair”, good luck! You had better hire a lawyer.”
A PWC study in Australia estimated that the costs to the Australian economy of introducing a fair use regime would be in the order of $1.3 billion with litigation alone rising from some $26 million annually to over $133 million. Contrast this to InternetNZ’s ideal scenario which proclaims;
“With open-ended exceptions, the “fairness” test relates to information held by the person doing the use: How much creativity are they applying? What type of work are they using? How much are they using? Will it affect the market for the original work?”
This is fertile ground for uncertainty and litigation, and hardly an incentive for innovation.
I am not saying fair use does not work for the US. It does, because the courts are attuned to the legal complexities of the US system. But a loose fair use doctrine as a defence against copyright infringement is not the norm for most countries, including the UK, Canada, Australia and, to date, New Zealand. The well-defined fair dealing exceptions that exist in those countries have served the public well, and are periodically updated by Parliament. While there can be interpretations of the law provided by the courts, in a fair dealing system it is generally a lot clearer whether a particular use is permitted, or not. This is particularly so in a smaller country such as New Zealand where there is less likelihood of a comprehensive body of judicial decisions being rendered to clearly outline the parameters of what is and isn’t fair use.
The “broad, open-ended exceptions” to copyright proposed by InternetNZ will not lead to “balanced” copyright law. Instead, they will undo the existing, well-understood balance, cause major harm and lead to interminable and expensive wrangling as to what is, and what is not, a fair use. InternetNZ does not really want to continue to protect New Zealand’s creative industries. What it wants is a Wild West where established norms are chucked out the window in the name of “balance” and “enabling the benefits of the Internet”.
One significant policy proposal that gets nary a word of mention in InternetNZ’s paper is the establishment of a site blocking regime to combat streaming of infringing content by offshore pirate websites. Requiring ISPs to block blatant piracy sites is already a regular practice in Australia and the UK, where it works well, and such a regime is now under consideration in Canada. It could also work in New Zealand and provide support for domestic cultural industries by preventing and discouraging consumers from accessing pirated content hosted offshore by rogue operators beyond the reach of NZ law. However any consideration of site-blocking is conspicuous by its absence from the paper.
Indeed, in 40 glossy pages, InternetNZ manages to produce a series of policy recommendations that are neither balanced nor fair, nor do they contribute to the goal they profess to embrace, that of providing New Zealand creators with internationally recognized, world class copyright protection. This is a Trojan horse. New Zealanders beware.