Increased enforcement without legal alternatives is ‘all stick, no carrot’ — what you can do about it

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.

2 thoughts on “Increased enforcement without legal alternatives is ‘all stick, no carrot’ — what you can do about it

  1. I really wonder if the fact that because it isn’t available in New Zealand, that this implies you have the right to pirate the media.

    I know that a lot of people do this, and maybe this is reasonable justification.

    However if the right-holders decide not to release the media in New Zealand, isn’t that their choice?

    If the media isn’t released in New Zealand, does this have implications for copyright? For example, why should New Zealand law protect non-New Zealand businesses? Well there are some obvious reasons, but if they don’t have a presence in New Zealand, at what level should their works be protected?

    Copyright is designed to give authors the right to dictate the terms of distribution of a work, right?

  2. Copyright is a balance of public and private rights. There are many rights that the public have to work for the purposes of journalism, etc. Copyright holders have no particular right to subsidized litigation costs, and the public have no right to buy copyrighted works (in patents there’s an unused legal provision for compulsory licensing but nothing similar exists in copyright as far as I know).

    “if they don’t have a presence in New Zealand, at what level should their works be protected?”

    Yes, this is the question. To what extent should we spend tax payer money on subsidising their litigation costs. The impetus for this law has been ‘lost sales’ and the new technologies of the internet which inherently involves understanding the forces in play in order to help New Zealand artsits, businesses, and the public… a blind ideologically application of copyright enforcement isn’t enough (all stick, no carrot). For subsidised litigation I’m saying that the fines should be scaled, in part, based on whether there is a legal alternative online in order to encourage legal alternatives/

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