Copyright in New Zealand (image courtesy of Wikipedia http://bit.ly/yAcWwi )

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.

Overview

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.

Leaks

Texts for the intellectual property chapter in the TPP have been proposed by several nations. In 2011 earlier proposals from the US, NZ and Chile were leaked.

Concerns

TPP is of concern to New Zealand artists for several reasons:

1. Secrecy

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:

1. the NZ/Chile proposed model which is moderate and basically seeks to uphold existing TRIPS agreements and focus on cooperation; and
2. 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?

Write: to your MP, Minister Amy Adams and Minister Steven Joyce to explain your concerns about the TPP, and in particular these points:

• 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.

Support us: we are a not-for-profit organisation running primarily on volunteer energy. Help us keep doing what we do by donating to the CFF.

Spread the word: tell your friends about this, either in person or through social media. Like the CFF Facebook page or follow us on Twitter. Use the hashtag #tppa on Twitter when talking about it.

Find out more about the TPP

• Tech Liberty
• NZ Rise
• TV3 blog on the TPP
• TPP Watch
• Ministry of Foreign Affairs & Trade

A final word

Gareth Hughes, Greens Party

While much of the world considers how to take rights away from the public and remix artists alike the Dutch have other plans,

Much to the displeasure of the wider EU, the Dutch want to liberalize their copyright laws to explicitly allow remixes and mashups. The irony is that their inspiration is not political movements like Sweden’s Pirate Party, but America’s laws about fair use.

In the U.S., fair use protects the use of copyrighted material for commentary, criticism and the like. But automated tools for detecting copyrighted material (on e.g. YouTube) and the overly-broad Digital Millennium Copyright Act, which allows anyone to request that an infringing work be taken down, put the burden of proving that a work constitutes fair use on the content creator. This has a chilling effect on the kind of work everyday people release on the web.

Here in New Zealand the Green’s Gareth Hughes is supporting a change to allow parody and satire remixes. If New Zealand is going to have an trade agreement with the U.S. that includes copyright changes (TPPA) then wouldn’t it be fair to get the same rights as U.S. citizens?

...

Peter Griffin talks to artists and technologists about the ongoing digital changes,

“The TPPA is secret; we don’t really know what is in it. It’s making sure we aren’t selling ourselves short just so we can get some milk powder into the United States.” With three-strikes laws passing around the world and the shadow of SOPA and PIPA online piracy legislation looming large in the US
[...]

“Copyright was founded on the premise of giving artists rights to make money, to have a temporary monopoly where they can control their work and to try to monetise it so they can make more work,” she acknowledges. “But the second half of copyright is about enabling public rights. As long as that pressure is coming from copyright holders to expand rights in their direction, we are going to need to keep up the pressure to maintain the public rights.”

Read more at The Listener.

Stop SOPA Ireland

Wired UK report that “Ireland is soon to have a law similar to SOPA passed that would give music and movie companies the power to force Irish ISPs to block access to sites suspected of having copyright infringing material on them.” (emphasis ours)

“Irish citizens won’t have a chance to lobby their democratic representatives because there won’t be a vote on the law [...] in the Irish Parliament. Instead the law is being enacted by ministerial order because it is being prepared in the form of a Statutory Instrument.”

Sign at the petition against it at StopSOPAIreland.com.

Paolo Coelho

As a highly talented and internationally successful writer we won’t even attempt to explain his case better than him:

“I have nothing against people earning money from their books; that’s how I make my living. But look at what’s happening now. [SOPA] may disrupt [the] internet. This is a REAL DANGER, not only for Americans, but for all of us, as the law – if approved – will affect the whole planet. And how do I feel about this? As an author, I should be defending ‘intellectual property’, but I’m not. Pirates of the world, unite and pirate everything I’ve ever written!…

Some people will say: You’re rich enough to allow your books to be distributed for free. That’s true. I am rich. But was it the desire to make money that drove me to write? No. My family and my teachers all said that there was no future in writing. I started writing and I continue to write because it gives me pleasure and gives meaning to my existence. If money were the motive, I could have stopped writing ages ago and saved myself having to put up with invariably negative reviews…

When you’ve eaten an orange, you have to go back to the shop to buy another. In that case, it makes sense to pay on the spot. With an object of art, you’re not buying paper, ink, paintbrush, canvas or musical notes, but the idea born out of a combination of those products.

‘Pirating’ can act as an introduction to an artist’s work. If you like his or her idea, then you will want to have it in your house; a good idea doesn’t need protection. The rest is either greed or ignorance.”

SOPA Protestors. Photo: Demand Progress

Here’s a summary of the biggest ever day of online protest.

Australia got this in 2006, and the US has had it for aaages, so its about time NZ caught up and gave its artists the same protections.

Hughes will be holding an online Q&A session from 6-7pm tonight (9 November 2011). Check it out here.

The impetus for the review was noted as: “developments in digital content distribution and the need to ensure clarity to copyright users, rights-holders and internet service providers as to what constitutes copyright infringing material…the Copyright Act 1994 is currently silent on the issue of parody and satire.”

The inquiry was begun under former Labour MP and Associate Minister of Commerce Hon Judith Tizard but under the new National government passed from Minister of Economic Development Hon Gerry Brownlee to Minister of Commerce Hon Simon Power who halted the review.

Australia implemented an exception to copyright for the purpose of parody or satire as part of it’s 2006 Copyright Amendment Bill and many other international countries have similar kinds of copyright exceptions including the US, France, Belgium, the Netherlands, Spain, and Germany. The UK and Canada are currently considering similar exceptions as part of their broader copyright reforms.

Considering NZ has just implemented a law providing Copyright holders with a system for enforcing their rights online, now would be a great time to balance this by protecting artists making transformative works ie remix, mashup, satire, parody, pastiche, and caricature. These creative methods have been around for centuries – wouldn’t it be great if NZ recognised them and protected them in it’s law?

The law comes into effect on the 1st of September 2011 and the fees will be reviewed by cabinet on 1st March 2012.

We’ll update this story as analysis comes out…

Chris Keall at the NBR says,

An MED paper on the regulations, however, revealed Mr Power wanted a $20 fee which the minister judged more than adequate for ISPs to recover administrative costs. Cabinet obviously disagreed.

Rights holders may also be disappointed that they have to provide internet service providers with a laundry list of information about an alleged offerender. The MED’s regulations paper calls for 13 items of information about the alleged offender, and the time, date and other details of their alleged offending.

The MED paper sees a “$0.060m” shortfall, or what most humans would call $60,000, during the new law’s first year of implementation.

It projects the $200 fee for taking a case to the Copyright Tribunal will lead to a 6% cost recovery.

A Stuff.co.nz article that’s quickly attracting comments says,

The new Copyright (Infringing File Sharing) Amendment Act – christened ‘Skynet’ by opponents – comes into force on September 1. The three-strikes warning system aims to stamp out illegal file sharing.

“Skynet” was first associated with the law by those who voted for it while demonstrating an embarrassingly poor understanding of copyright and the internet.

TechLiberty summarise the news,

1. The cost of making a complaint will be $25 (rights-holders argued for $2, ISPs for higher). This is to be reviewed after 6 months. (Minister recommended $20, Cabinet raised it to $25.)
2. The paper recognises that this fee will not allow for full cost-recovery by the IPAPs and will therefore push up internet costs for subscribers (point 25 on page 7).
3. Rights-holders can appoint an agent to act on their behalf to send notices.

(read more at TechLiberty)

See also: CFF submission on the regulations [PDF].