Last week the CFF attended a Stakeholders Briefing on the Trans Pacific Partnership (TPP), a treaty that will affect copyright in New Zealand, the United States and other nations. New Zealanders have just spent in excess of $600,000 to develop an enforcement regime (apparently for the benefit of Rihanna) in the Infringing File Sharing Act, but more changes are on the way that affect public and artistic rights.
Summary of TPP copyright issues
1. The negotiations continue to be secretive even by WIPO standards. Some documents won’t be released for at least four years after the agreement is signed.
2. The US are pushing for New Zealand to adopt:
- Internet termination for households, businesses, and organisations;
- A policy for the NZ Police to prioritise copyright enforcement even at the detriment of other police work;
- The effective removal of Fair Dealing rights by expanding the protectionism of DRM/TPMs, including criminalising the bypassing of DRM/TPMs when exercising legal rights;
- Allowing copyright holders the ability to ban parallel imports of copyrighted material (eg DVDs), denying New Zealanders the right to purchase overseas content;
- An expansion of copyright duration to: death of the author plus 70 years, or 105 years from date of publishing for sound recordings and film.
The TPP is an international trade agreement currently being negotiated by NZ, the US, Australia, Chile, and several other pacific nations. It’s been described as a bill of rights for corporations, but this comes at a cost for artistic rights and wider public rights.
Through this process the New Zealand government is keen to build and maintain it’s political ties with the US, hoping to gain better access to US markets for it’s agricultural industry. Further down the line, New Zealand hopes that such an agreement would be joined by other big and valuable players (Japan, India etc). The US believes that it will protect a major export of theirs: copyright.
The next round of negotiations are happening in Melbourne in early March and there is a push to conclude negotiations by the end of this year. Depending on the timing of TPPA negations wrapping up, New Zealand may delay its 2013 review of the copyright act in order to first focus on the TPP.
TPP is of concern to New Zealand artists for several reasons:
As with ACTA – which is currently being met with significant criticism and protest in Europe – this treaty is being negotiated behind closed doors. Prior to entering negotiations the NZ government and all other participants signed up to a confidentiality agreement that will keep all discussion documents secret until four years after the agreement is either entered in to, or negotiations cease.
In the past US officials have made extraordinary assertions such as claiming a direct link between copyright infringement online and the funding of terrorism. These allegations have never been substantiated, however if they were introduced in a discussion document the lack of public scrutiny could see them go unchallenged throughout the negotiations. There is a significant inability for affected stakeholders and experts, such as NZ artists, to comment on the treaty with accuracy and in depth without having access these documents.
2. Copyright, copyright, copyright
The TPP text includes a significant chapter on “IP”, with particular emphasis on copyright.
Two alternative models are being discussed for this chapter:
- the NZ/Chile proposed model which is moderate and basically seeks to uphold existing TRIPS agreements and focus on cooperation; and
- the US model (referred to as “ACTA Plus” and the “standard US template”).
As seen in ACTA, and other US-endeavours to influence NZ copyright lawmaking, the US are pushing for aggressive and heavy-handed copyright regimes.
This has huge potential to harm the way New Zealand artists work and use the internet to connect with overseas markets. It has the potential to unfairly harm public rights and respect for copyright, artists and their work. Because copying occurs in private homes on private internet connections it’s essential to have publicly respectable copyright law, because laws that don’t earn public respect ultimately harm artists.
Items of particular note in the US proposal include:
- Internet termination as a penalty;
- Requiring NZ to prioritise copyright enforcement even at the detriment of other policing (lack of resources wouldn’t be accepted as an excuse). Some violent offenses won’t be considered as important as kinds of copyright infringement. When put alongside the $600,000 that New Zealanders have already subsidised for copyright enforcement it’s clear that the trend is to 1) make everything a criminal offense and nothing a civil offense in order to 2) pass expenses for their current business model to the public by making police enforce copyright;
- Removing Fair Dealing rights through expanding protectionism for Technical Protection Measures (TPMs) also called Digital Restriction Management (DRM), and making it a crime to bypass DRM/TPMs, for example trying to access content legally purchased from other regions by breaking the DRM on a DVD player to make it region free. This is currently legal under existing NZ copyright law and is important for enabling NZ to engage with other parts of the world. CFF is opposed to DRM protectionism;
- Allowing copyright holders to ban parallel imports of copyrighted material to allow for market segmentation (Eg expanding region coding-style systems, preventing NZers ordering books from foreign suppliers like Amazon.com). New Zealand already lacks legal alternatives such as Hulu and Netflix — why make it harder to buy?;
- A significant extension of copyright term from death of the author plus 70 years, or 105 years from date of publishing for sound recordings and film (the NZ term is currently death of the author plus 50 years, or 50 years from date of publishing for sound recordings and film);
- Increasing civil punishments (statutory or triple damages) and ensuring mandatory sentences that remove the current right of a New Zealand judge to use their personal discretion.
Heavy handed regimes like this can have a “chilling effect” on innovation and creativity because they create massive risks for anything that touches copyright, including new artistic works, and they remove public rights in favour of copyright (such as the effective removal of Fair Dealing under the proposed changes to DRM/TPMs).
What can you do?
- the secrecy and lack of discussion documents being made public. Nations involved in ACTA were persuaded to release the discussion documents due to significant public complaint about the private nature of this negotiation, and the same may be possible with TPP;
- the extremist US proposal, “ACTA Plus”;
- the banning of parallel importing. New Zealand already suffers from the lack of access to legal content stores online. A further removal of our access to content will isolate us from participating in global culture;
- the issue of increasing DRM protectionism effectively removing public rights that we currently have under Fair Dealing laws.