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Copyright aims to balance private property rights with specific public rights in a way that encourages innovation in the arts, business, culture, and public commentary. But if the balance is not right, innovation is stifled. If Section 92 comes into effect then public rights will be drastically undermined by a law that automatically treats people as criminals. But how did it get this way?
Our music, our culture, our science, and our economic welfare all depend on a delicate balance between those ideas that are controlled and those that are free
What Is Copyright?
Copyright is a legal concept giving the creator of an original artistic work rights over their work for a limited time.
The second you press stop after recording an audio track, or take your pencil off the page after drawing an image for example, you're granted Copyright for what you've just made. You don't need to register it, or write a © on it. As a Copyright holder you have a right to make and sell copies of your work, with some exceptions.
So it's like property?
Not really. Copyright expires after some time but your legal right to property - a chair for example - doesn't. That's why actors don't need permission to perform a Charles Dickens play. Copyright is more like a temporary monopoly: only you alone can sell copies of your song/book/movie/etc., or even sell the Copyright for a defined period of time. It's not like property because in some cases people can take bits without needing to ask, like when someone quotes part of a book. There are several kinds of uses that you don't need permission for, and the term for this in New Zealand is "Fair Dealing" (although the American term "Fair Use" is more widely known). Examples of Fair Dealing include photocopying portions of books for education, and researchers and academics using works for research purposes.
Please note, the Creative Freedom Foundation does not endorse or support Copyright infringement that takes money away from artists, but instead we advocate Copyright reform for the benefit of New Zealand.
Who decides what Fair Dealing covers?
New Zealand's Parliament and Courts. They try to find a balance of use between what's good for Copyright holders and what's good for culture and the economy as a whole. For example, to make copies you typically need permission but if you had to gain permission before quoting someone that would inhibit free speech (and businesses based on this, like newspapers). Copying is good for culture and it can promote critical thinking and analysis. The Government's difficult task is to strike the right balance between artists as Copyright holders and artists seeking to build on and benefit from existing culture.
Copyright provides an income for many people, and so does Fair Dealing:
The Computer and Communications Industry Association has released a study claiming that the value added in the United States by industries dependent on fair use is $2.2 trillion dollars annually, or one sixth of the U.S. economy, apparently almost 70% more than than value added by Copyright industries, as measured by other recent studies.
So where is the balance?
Over the past fifteen years Copyright law has seen drastic changes in favour of Copyright holders and against artist reuse through Fair Dealing. In 1995 you could sample 5% of text for educational reasons but by 2000 this was reduced to 3% and now, online, this right can be removed entirely with DRM (Digital Restrictions/Rights Management). In New Zealand you are not allowed to sample for the purpose of parody or satire. If you buy a CD in New Zealand you are allowed to make one single copy to your mp3 player for free but if you buy a DVD you're not allowed the same right. You are allowed to sample and reproduce portions of text but you're not allowed to sample audio or video or images (unsurprisingly, this law was made before home computers were popular!).
Stranger still –in the name of protecting artists who are Copyright holders– the latest proposed change to New Zealand Copyright law is based on Guilt Upon Accusation. This would force the termination of internet connections and websites without evidence, without a fair trial, and without punishment for any false accusations of Copyright infringement. As former Minister Judith Tizard stated, they will "cut off anyone who might be breaking the law". This law, called Section 92, is so far-reaching that accusations can cut off a hospital or school's internet connection without a trial.
This is being done in the name of protecting artists, and protecting creativity.
But it will do neither. In fact, Section 92 will stifle creativity.
Why is Copyright going this way?
Unfortunately many people have a misunderstanding about what Copyright is. They see Copyright as property and any unauthorised use as theft (popular terms like "intellectual property" give the wrong impression of what Copyright is, and Hollywood's anti-piracy campaigns reinforce this misunderstanding). Rebalancing Copyright in favour of Fair Dealing is therefore often perceived as an unnecessary intervention in a free market of creativity, rather than what it actually is: appropriate regulation to encourage innovation in the economy, art, and methods of free speech.
Many politicians see the threat of so-called "piracy" as so significant that they're willing to suspend conventional civil rights.
"The point was that eventually the measures employed in trying to fight such "wars" ends up crossing the lines that society draws around civil liberties, and the intangible cost to society becomes greater than any actual benefit. Professor [Lawrence] Lessig contends that the "Copyright war" has now reached that point".
Matthew Poole's review of a Lessig talk on PublicAddress.Net
A lot of copyright law is being unduly influenced by large media companies. No need to take our word for it, go read Rob's post from TheyWorkForYou.co.nz talking about how Section 92a was made and the quotes from politicians.
But our focus is not to blame politicians. Politicians still have time to fix this law and change it in fair ways that help further artist's creative opportunities, and stop injustices like Guilt Upon Accusation being done in our name.
There are many organisations trying to fix Copyright laws, and the CFF is just one of them. InternetNZ, Consumer NZ, and others are already pushing for due process to be carried out in New Zealand, and there are others pushing for fair changes to copyright laws. There are many viable solutions to this issue — all that is needed is for Copyright Law to be adapted so it makes sense for the 21st Century.
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