Holloway-Smith Steps Down as CFF Director (open letter)

Dear friends of the Creative Freedom Foundation,

It is with sadness that I am writing to let you know that, after 5 long and eventful years at the helm of the CFF I am stepping down as Director and spokesperson.

For the past 5 years I have been juggling my art career, day job, and raising a young family as well as maintaining this work. Recently, however, I have been awarded a scholarship to study a PhD in Fine Arts through Massey University. This requires full-time study alongside working 2 days, managing a household, and raising a 1 ½ year old and a 4 year old.

It is a shame to be leaving this role in an election year when so many issues remain unresolved in the copyright area, but the realities of juggling so many things at once have come home to roost.

After lengthy discussions with the CFF Trustees we have decided that, in lieu of finding a suitable replacement, the best course of action is for the organisation to enter in to a recess/hiatus period, reassessing our future once my studies have commenced.

It has been a wild ride: from our beginnings with the Internet Blackout Campaign, through to the Copyright (Infringing File Sharing) Amendment Act, ACTA, the Parallel Importing Restrictions Bill, and engaging in discussions around the current looming nebula of the Trans Pacific Partnership.

Coming from a Fine Arts background, I’ve learned an awful lot about the political process and the media terrain in New Zealand. We have been hugely grateful for the encouragement we have received over the years from our supporters in the creative community in NZ – and we thank you for backing us in this ongoing conversation.

I wish I could say I was stepping down having achieved everything I set out to do, but sadly that isn’t the case. The state of copyright in New Zealand is still far from ideal: the TPP is still up in the air threatening to extend the term of copyright in New Zealand, a full copyright review is overdue, there still isn’t great access to content in NZ, and adequate Fair Dealing protections for artists are seriously lacking.

We are thankful to see the efforts of our fellow organisations continuing to work in this area. Here are a few that you might like to keep an eye on:

  • This month, Creative Commons Aotearoa New Zealand will be launching a site “NZ Commons” that will be dedicated to discussing the opportunities and challenges of opening New Zealand’s culture and knowledge for access and reuse, with a particularly focus on copyright, licensing and the public domain.
  • Ian Jorgensen aka Blink of A Low Hum has published a book called “The Problem with Music In New Zealand”. Blink is a great advocate of NZ Music who has been working in the field for many years. This book outlines particular issues he has experienced over this time and he is setting out to rectify them. Buy a copy and support him.
  • TechLiberty is dedicated to protecting people’s rights in the areas of the Internet and technology – (including Copyright)
  • The Fair Deal coalition continues to operate, keeping a beady eye on the Trans Pacific Partnership
  • The Internet Party has been the first political party to publish an extensive draft policy on Copyright in the lead up to this year’s election. They make some very interesting points.

I would also like to extend a special thanks to MPs Gareth Hughes (Greens) and Clare Curran (Labour) for their highly informed, critically robust, and professional engagement with the issues we have been discussing for the past five years.

Our website http://CreativeFreedom.org.nz will remain live as a quiet resource, and each of the Creative Freedom Foundation trustees will still be following these issues in their own way – they are still dear to our hearts. This isn’t goodbye, it’s see ya later.

For those who might be interested – my PhD topic will be investigating the cultural significance of the landing sites of NZ’s connection to the Southern Cross Cable: namely Takapuna and Muriwai beaches. In many ways this topic has sprung from the work the Creative Freedom Foundation has been doing, and my first project Te Ika-a-Akoranga connects with Copyright issues in a rather direct way.

Ka kite anō,
Bronwyn Holloway-Smith

McTrademarks and McSkools

Today Labour were describing the Government’s Charter Schools as McSkools, and we’ve probably all heard stories of McDonalds trying to assert their trademark of almost McAnything, so soon armchair lawyers were talking of legal action against Labour. To complicate matters Labour also used the golden arches ‘M’ in their poster (which they’ve since removed).

The ‘Mc’ prefix has become synonymous with cheap, basic, and standardised. It’s a common piece of language as the UCSD point out:

California Law Review: “McLaw: Lawyering for the masses (about easily accessible and inexpensive basic legal services).

“Forbes magazine: “McArt” (about mass-marketing art stores that are open 7 days a week).

Erma Bombeck, syndicated columnist: “McStory on the paper’s front page” (about the preoccupation of the media with certain stories e.g. the octoplets)

And McJob is even in the dictionary.

So Labour are using well-established and common language and there’s little doubt that calling anything McSkools is legal. The only arguable bit is using the golden arches trademark,

(credit: Labour, and this guy for taking a screenshot)

Of course parodies of McDonalds happen all the time, especially in the artistic communities who remix. In the US their law recognises that there’s a balance between giving trademark holders complete control within our society Vs restricting effective means of speech that draw upon our shared culture. Who should have this control has been a continuing debate within New Zealand artistic circles because New Zealand artists lack remix rights — unlike our Australian and United States neighbours.

An example that comes to mind is back in 2001 TePapa removed tshirts that parodied company brands known to employee Pacific Island workers for low wages. A decade later TePapa do not have images of their purchase online.

In 2001, Kihara’s T-shirt series Teuanoa‛i – Adorn to Excess which parodied well-known corporate logos were exhibited at Te Papa and later added to the national museum’s collection. The T-shirts featured Kihara’s quirky take on well-known brands, turning logos such as The Warehouse to The Whorehouse and KFC to KKK. The exhibition created controversy in the media and raised legal questions about copyright versus artistic expression. Following legal advice, Te Papa removed three of the 28 T-shirts from its exhibition, but purchased the entire series. (cite)

The Greens have a Copyright (Parody and Satire) Amendment Bill that seeks to give New Zealand artists the same rights as Australian and United States artists. The question now seems to be whether these rights should include trademarks too – not just copyright.

Media Release – Leaked TPP text puts New Zealand’s economic future at risk (Fair Deal)

As noted by CFF trustee Daniel James “New Zealand has less history to draw on than many of the other countries in the agreement, and that means large increases to copyright extension drastically reduce the pool of available resources that New Zealand artists have to comment on their own heritage.”

Media release follows…

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TPPA looks set to secretly extend NZ’s Copyright Term

Last week the Creative Freedom Foundation participated in a group briefing and Q&A session with David Walker, NZ’s Chief Negotiator in the Trans Pacific Partnership Agreement, and officials Angela Strahl and Yvonne Woutersen.

The meeting made it quite clear that, although the details aren’t final, we can expect to lose many remix rights and see a greater ‘orphaned works’ problem here in New Zealand in exchange for more dairy exports to the U.S. Rather than further protecting artists’ rights, this move will prop up a fundamentalist approach to copyright that will drain the pool of works currently accessible to artists who wish to freely build upon them. Our Big Idea article outlines some of the reasons why this is a problem for kiwi artists.
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The last time to speak to Govt on copyright this year?

Tomorrow the deadline for submissions on the Parallel Importing of films. Since 2003 cinemas have been in a blessed position by having their competitors severely limited. These competitors (DVD importers) can’t sell legal movies to New Zealanders — artists or otherwise. With the introduction of legal options it’s always been shown that piracy rates plummet, so why are they limiting legitimate and legal movies? Even the government’s own report says that the justification for the ban is “weak”.

The government are now proposing to extend the ban for another 3 years, but back in 2003 speaking in Parliament about the ban, John Key (then an opposition MP) said: “Under this system, choice will diminish. Prices will go up and product availability to the consumers of New Zealand will go down. [...] [The public] want to enjoy a movie that is current and not wait to see it in nine months’ time, when it has gone from being fashionable to unfashionable. They are not interested in watching a movie that has already been bagged by movie critics on radio stations and television.” (source: Consumer NZ)

This is an excellent opportunity to speak to government on copyright, and it may be the only time we get to speak this year, so get your submissions in!

Official instructions here and be sure to ask us (twitter, email) if you have any problems.

Need ideas for your submission? See our previous submission on the bill here (PDF).

Fair Deal international press briefing

This morning Fair Deal international had a press briefing. The coalition is announced its expanded international network amidst the TPP negotiations in Lima, Peru, and the expanded coalition consists of organisations from six of the twelve negotiating countries.

The briefing was MC’ed by TUANZ CEO Paul Brislen. Bronwyn Holloway-Smith spoke of how the TPP may affect New Zealand artists. Read on for a transcript of Bronwyn’s brief speech at the event.

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Creative NZ ask for submissions on music funding priorities – have your say

Creative New Zealand have offered a public discussion paper seeking submissions about how they support and develop New Zealand music and musicians. CFF are compiling a submission to CNZ in response to this discussion paper, and we would love to hear your ideas as we develop our submission. If you would like to have your say on how music is funded by CNZ, please email your ideas to cff@holloway.co.nz (or reply to the relevant CFF Tweet or Facebook post).

Submissions to CNZ close on 17 May 2013, so please send us your ideas by Fri 10 May 2013.

Our Submission to MBIE on Commercial Parallel Importing of DVDs

You might not know it but New Zealand has a ban on commercial parallel importing of DVDs that were bought legally overseas. Australia doesn’t have a ban, and neither does the U.S. When the government previously reviewed the ban in 2008 their own studies showed that the argument for retaining the ban was “weak” but despite that it was maintained. Recently MBIE called for submissions [PDF] again on parallel importing and we responded [PDF].

The restriction limits our access to legitimate copies of works that our peers in the rest of the world are already discussing, dissecting, and deriving new ideas from. It leaves us behind the curve, but without an offsetting benefit to the New Zealand creative sector.

New Zealand artists can import movies for non-commercial use (e.g. from Amazon), albeit at an additional cost that a commercial importer could avoid through economies of scale. This effectively prices many films out of reach, or it puts additional costs on New Zealanders who will send their money offshore (with a corresponding loss of tax revenue to the New Zealand government, which supports New Zealand artists through entities such as the New Zealand Film Commission).

If the public cannot, for example, legally obtain current material in a timely manner, then they may become skeptical of copyright law as a whole – if there are no suitable legal options then people will be more likely to use illicit channels. Maintaining a ban on commercial parallel importing decreases the supply of legal alternatives which affects all artists, not just individuals seeking to create market segmentation by controlling distribution.

Read our full submission here [150KB, PDF].

US Supreme Court upholds First-sale Doctrine. Importing books is not a copyright crime.

Historically publishers tried to restrict the resale price of second-hand books by putting a notice specifying a minimum price in the cover of the book. Absurd, right? Well the US Supreme court agreed that people could ignore that, sell their books for any price, and that principle was called the First-sale Doctrine. Recently a Thai student bought cheaper books overseas and imported them for sale but the publisher tried to use copyright to prevent the second-hand books from being sold and there’s been an ongoing court case to establish whether First-sale Doctrine applies to overseas purchases too. Today the court ruled that it does apply. As ArsTechnica report,

The importation of copyrighted goods made abroad has been an increasingly contentious issue in recent years. Easy access to Internet resale markets like eBay and Amazon have made it possible for a new breed of entrepreneurs to buy low and sell high in a wide array of areas. The Supreme Court handed these resellers a major victory today, issuing a decision [PDF] that makes it clear that the “first sale” doctrine protects resellers, even when they move goods across national boundaries.

Of course if “intellectual property” was more like real property there would have never been a lengthy court case because it’s understood that, for example, people buying a bar of chocolate can do anything they want with it. Buyers are not encumbered after their purchase. The idea of restricting what happens to a legally purchased item is just another example of how “intellectual property” is not property as we know it and rather that copyright should be thought more of as a monopoly right. That right expires in due course, and it has important limitations like Fair Dealing/Fair Use* and the First-sale Doctrine.

What BitTorrent Live means for kiwi artists: new CFF Trustee Dr. Dan James explains

Over a decade ago, BitTorrent inventor Bram Cohen revolutionised the way we download videos and other files in a time-efficient manner. Now he is one of the lead developers of a new protocol called BitTorrent Live. This protocol has only just been launched, and it is set to revolutionise how artists can stream video online in real-time – offering significant innovations in resilience and significant reductions in the costs involved.

My name is Dr. Dan James (aka Dan Untitled), and I am the newest trustee for Creative Freedom Foundation. By way of introduction to my new role at CFF, I would like to highlight some of the ways that BitTorrent Live is relevant to my own creative work (providing background to some of my projects), to explain why BitTorrent Live is exciting news for New Zealand artists, and to overview some of the potential implications that need to be addressed in copyright law as this technology develops.

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