In the MED Infringing File Sharing regulations discussion document (public submissions due at the end of this month) they ask for feedback on the ways of calculating fines. What should the fines be for movies or TV shows that were never available online for purchase; that could never have been a ‘lost sale’?
As noted in our previous submission,
d) where there is no legal download available the fine scale should be minimised as there may be no ‘lost sale’. This has the side-effect of encouraging distributors to adapt to meet New Zealand consumer demand.
The law calls for the public funding of a tribunal – effectively a public subsidy of copyright holder litigation costs because the courts are “impractical and ridiculous” (in the words of RIANZ). As identified by Juha and Mauricio a central problem with increased enforcement of copyright holder’s rights is that we don’t have the legal options for online movies and TV that are available in many other countries. New Zealand is often at the end of the media supply chain so even popular movies such as The Hurt Locker can show at U.S. cinemas, be released on DVD in the U.S., win the Academy Award’s Best Picture, and yet never appear in our country. Increased enforcement without legal alternatives is ‘all stick, no carrot’.
So, what do the regulations favour as their preferred option?
Under this option, the Tribunal would calculate awards as follows:
a) The compensation element of the award would be calculated with reference to the market value of the work. Market value may be more appropriate than retail value, as often new release works that have not reached the retail market are the subject of file sharing.
This option would serve to entrench existing business models that do not provide for legal alternatives online. If you’re making a submission on the regulations for this law then we urge you to reject this approach and to instead suggest that fines be scaled based on whether there are legal alternatives online — this is an essential criteria to encourage these businesses who are effectively receiving publicly subsidised legal costs to provide legal options for New Zealanders.