Speaker by Various Artists

39

Copywrong II

by Nandor Tanczos

The Copyright (New Technologies and Performers’ Rights) Amendment Bill passed its first reading in Parliament last week, with only the Green Party voting against it. The following is the speech on the bill by Green MP Nandor Tanczos.

The full debate is here.

More information on the content of the bill, and the parts of it that are cause for concern, is contained in this Hard News post and in detail on Stephen Marshall's legal blog:

Part One: Background and Context

Part Two: Copying for Educational Purposes

Part Three: Format Shifting

Part Four: Technological Protection Measures (TPMs)

Part Five: ISPs and Transient Reproductions

Part Six: Libraries and Archives

Part Seven: Software

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Speech: Copyright (New Technologies and Performers' Rights) Amendment Bill, First Reading
Nandor Tanczos MP, Green Party Information, Technology and Communications Spokesperson
Parliament, 13th December 2006

The Copyright (New Technologies and Performers’ Rights) Amendment Bill has been so long in the drafting that some of the more telling criticisms of it can be found in the ministry’s own early documents.

In its 2002 position paper, for example, it states that it is the ministry’s view that it is not the role of the Act to protect access-control technology, which is used in some cases to price discriminate and control geographical distribution of works to the detriment of users. I absolutely agree. Our copyright law should not be used to help firms to price discriminate and to control where and how works that have been legally purchased can be used. This would be to the general detriment of users and it would stifle innovation and research. Yet this is precisely what the current bill would do. It would turn this Parliament into a tool of corporate control by mimicking some of the least desirable features of prior American legislation on this topic.

To be fair, there are some good points. The bill tries to distinguish between personal use and commercial use of digital material, but with mixed results. It protects Internet service providers from being in breach of the Copyright Act as they conduct transient copying during the process of delivering web material, and it has also tried to come up with a workable notion of 'fair dealing' in copyright material. It tries to exempt sound recordings that have been ripped to an iPod or for playing in the family car. It also seeks to create another exemption that intends to legalise the use of multi-zone DVD players. These are welcome advances - or they would be, if they were unambiguous.

I acknowledge the comments of Chris Finlayson in his call for a comprehensive approach to the whole issue of what constitutes 'fair use'. If we take the issue of format shifting as an example, currently under the Copyright Act it is illegal to rip a CD that one has legally purchased on to one’s iPod, or to make a copy to play in the car.

Under this bill it would be legal to take a CD that one has bought and make one copy for each of the replay devices that one owns. Yet, incredibly, this provision has been given a sunset clause. This exemption, which allows a person to format-shift the sound recordings that he or she has bought, will expire 2 years after the legislation has been passed, unless it is explicitly renewed by Order in Council.

It seems to me to be a basic principle that once we have bought a CD, we should be allowed to decide how we use it in our own homes. How will this exemption work at all if a record company attaches non-copying technology to its CDs? Under this bill it would appear to be illegal to try to circumvent that technology and to try to enforce one’s legal rights in New Zealand. One of the concerns raised by the Privacy Commissioner around this very point was that such proposals may force New Zealanders to accept intrusions on their rights that may not be consistent with New Zealand law but would be illegal to circumvent.

In addition, why has the exception for copying purchased sound recordings for personal use not been extended to audiovisual works, as well - that is to say, to DVDs as well as CDs? People do format-shift both CDs and DVDs, and will increasingly do so - it is just a simple fact of the world we live in.

The line between personal use and commercial use also gets very blurry, very quickly. If personal use can be argued to have commercial implications - if one merely communicates information about the structure of encryption codes to others who then use them for commercial or criminal purposes - the chain of liability seems very unclear.

Presumably, one cannot be held criminally liable for the end uses of digital information by others. It is also unclear to me how, under this bill as it is drafted, one could carry out open source research, which can be said to be of personal use too but can have commercial applications. The entire open source movement, whose overwhelming strength and contribution to the entire evolution of the World Wide Web and the Internet has been based on its readiness to share how codes and formats work, could all be torpedoed by this legislation.

We would be legislating against the new breed of web innovators. Where, for instance, will interoperable competitive products fall on the spectrum as the bill attempts to strike a balance between copyrights and personal use? In one sense it is clearly of personal advantage to be able to develop one’s own product, but will that not entail cracking and disseminating the codes and formats of the units one wishes to interoperate with?

But, as I have previously indicated, my most fundamental problem is the degree of protection that the bill offers to technical protection mechanisms. These anti-circumvention measures primarily put Parliament in the service of corporate profit-making. They give no discernible defences at all, that I can see, against malware or encrypted surveillance measures that corporates may well incorporate into digital works that they distribute. Collectively, these measures will - and currently already do - work to stifle innovation and research.

Let me be clear at this point that the bill, despite its name, is not actually about protecting the copyright of artists. Those artists’ right to a decent income from what they have created is not the driving motive of this bill. Nor will this bill stop piracy or counterfeiting. The US legislation that the bill mirrors has been invoked not against pirates but against consumers, scientists, and legitimate competitors. What this bill seeks to do is enshrine the rights of corporations over cultural and scientific property. Artists, with very few exceptions, will continue to receive a pittance for the fruits of their labours. After all, the bill is about the right of corporations to exploit consumers at every point in the delivery of digital material, and it seeks to make a criminal out of every citizen who tries to resist those corporations’ power to do so. As an example, corporations in the United States have already sued nearly 2,000 individuals who have engaged in the file sharing of music.

Just today we have been debating legislation to end Telecom New Zealand’s monopoly of access to the local loop—why on Earth would we want to create a new realm of legislation that enshrines monopoly access in the digital domain?

The international verdict on this legislation is already in. Cory Doctorow of Boing Boing, the world’s most widely read blog, has this to say: “New Zealand MP Judith Tizard has sponsored an amendment to New Zealand’s Copyright Act. The new copyright proposal mirrors the US Digital Millennium Copyright Act. This has been an unmitigated disaster in the United States. Not only has it totally failed to keep copyrighted works from being copied without permission but it has also created an anticompetitive marketplace where companies can sue their competitors for making compatible products.” For making compatible products! Not to mention, the devastating effects on user rights and the chilling effect on legitimate security research. “The US had an excuse,” Doctorow concludes, “when it passed the Digital Millennium Copyright Act in 1998: nobody had tried it before and seen how bad it was. But here we are, 8 years on, and what possible excuse can New Zealand have for adopting this failed US policy initiative? Why would one want to import another country’s disaster?”

That is the question this Parliament has to ask itself. In fact, as someone has already said about this bill, people can poison the river and get a slap on the wrist - or get a consent, as happened in Pareora just today, I think - but if they try to tamper with a multinational’s international property rights, then the book really gets thrown at them, to the tune of fines of up to $150,000 or 3 years in jail, in the case of that legislation. Why on earth do we want to introduce that kind of legislation here?

I will make one final comment around the exemptions for educational purposes. The point was made, in an email that came to me only today from Stephen Marshall, that the Copyright Licensing Limited v University of Auckland decision has made it abundantly clear that exceptions in relation to educational purposes must be interpreted as narrowly as possible. In practical terms it is very hard to stay within the limitations of the Act. New Zealand institutions have discovered this to their cost. In effect, every institution must use licences to manage the risk. The bill’s regulatory impact statement acknowledges that obliquely by saying that it may be that some libraries and educational establishments will be prevented from making particular use of copyright material without a licence from the copyright owner, but that it is OK because it may already be covered by their licensing agreements. This rosy view of the world of licensing ignores the experience of Australia, which is often an accurate predictor of New Zealand in this area.

We have to remember that licensing for digital provision of materials is substantially more expensive than for paper-based materials—up to 10 times the fees for the same content on digital. Institutions are having to invest heavily in onerous tracking and notice provisions.

(ends)

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