The briefing was MC’ed by TUANZ CEO Paul Brislen. Bronwyn Holloway-Smith spoke of how the TPP may affect New Zealand artists. Read on for a transcript of Bronwyn’s brief speech at the event.

Tēnā koutou katoa, hi everyone, I’m Bronwyn Holloway-Smith. I’m the Director of the Creative Freedom Foundation. We’re a not-for-profit organisation that advocates for New Zealand artists — and we’re particularly interested in copyright law changes. At present we have around 20,000 members.

As New Zealand artists, for us one of the big issues at stake in the Trans Pacific Partnership is the extension of the duration of copyright. As artists we acknowledge that a limited Copyright term is useful, but there is a point where excessive durations start to cause problems for artists.

Copyright is given to artists for a limited time so that we can exclusively control copies of our work, with the idea that this will enable us to make more work. It’s important to remember that copyright is a temporary monopoly – not a form of property. When copyright protection expires on a work it falls out of copyright – and into the public domain. At this point it becomes a public resource that artists can – and do – draw from in the creation of new works. This fact also has significant economic implications for artists.

Of course billion dollar empires have been built from the public domain. Walt Disney’s company remixed public domain stories like Snow White, Cinderella, and Beauty and the Beast. In New Zealand the lack of copyright on Shakespeare has allowed us to translate and perform The Merchant Of Venice in te reo Maori — keeping it relevant for kiwi audiences.

An extension of the copyright term will dramatically reduce the number of works we’re currently legally and freely able to sample: taking from us of what we’ve already been promised under the law.

If taking copyrighted works without permission is stealing from copyright holders, then surely if the Government agree to a copyright extension in the TPP they will be stealing up to 70 years worth of public domain works from us.

The US are trying to convince Minister Tim Groser that their excessive copyright terms won’t harm New Zealand artists — but they will. They will prevent New Zealand artists from doing exactly what Walt Disney did.

When copyright was invented it was only for fourteen years, but over the decades this has repeatedly increased and in most countries it now lasts for at least life plus 50 years. For literary, dramatic, musical or artistic works, New Zealand artists currently have their lifetime plus 50 years worth of protection for their works. This term could stretch to life plus 70 years. Sound recordings and films could more than double – up to one-hundred-and-twenty years.

While it’s important to uphold copyright duration for a period of time to give artists the opportunity to make profits from their work, as artists we acknowledge the benefits we’ve received from the shared community of the public domain.

Our government has spent a lot of time and taxpayer’s money on copyright enforcement. Once upon a time, Copyright enforcement was straightforward: regulating expensive and uncommon industrial manufacturing processes. Now it’s trying to regulate what people do in the privacy of their own homes, on internet connections. Because of this, copyright lawmakers, and negotiators, must focus on a new area: public relations. As artists we need to be careful that copyright isn’t turned into something that loses public respect for us and our work.

For copyright to be respected in the modern age it needs to earn it:

• it needs reasonable copyright durations,
• it needs to allow parody and satire protection for artists (like Australia and America do)
• and for crying out loud… it’s the year 2013… New Zealand copyright law still says you aren’t allowed to circumvent TPMs to watch legally purchased DVDs on your iPad.

Bad copyright law will be bad for us and bad for our heritage: alienating our fans, creating public scepticism about a system that’s seen as unfair, and blocking our ability to build on other ideas and participate in global culture.

Infact, one of the reasons the Creative Freedom Foundation exists is to ensure that the extremist views represented in New Zealand by the likes of NZFACT and RIANZ aren’t the only artistic voices heard because heavy-handed views like that can and do negatively affect all artists. We urge the Minister Tim Groser not to harm artists and copyright itself by increasing its duration when it will benefit so few and harm so many.

 

Submissions to CNZ close on 17 May 2013, so please send us your ideas by Fri 10 May 2013.

The restriction limits our access to legitimate copies of works that our peers in the rest of the world are already discussing, dissecting, and deriving new ideas from. It leaves us behind the curve, but without an offsetting benefit to the New Zealand creative sector.

New Zealand artists can import movies for non-commercial use (e.g. from Amazon), albeit at an additional cost that a commercial importer could avoid through economies of scale. This effectively prices many films out of reach, or it puts additional costs on New Zealanders who will send their money offshore (with a corresponding loss of tax revenue to the New Zealand government, which supports New Zealand artists through entities such as the New Zealand Film Commission).

If the public cannot, for example, legally obtain current material in a timely manner, then they may become skeptical of copyright law as a whole – if there are no suitable legal options then people will be more likely to use illicit channels. Maintaining a ban on commercial parallel importing decreases the supply of legal alternatives which affects all artists, not just individuals seeking to create market segmentation by controlling distribution.

Read our full submission here [150KB, PDF].

The importation of copyrighted goods made abroad has been an increasingly contentious issue in recent years. Easy access to Internet resale markets like eBay and Amazon have made it possible for a new breed of entrepreneurs to buy low and sell high in a wide array of areas. The Supreme Court handed these resellers a major victory today, issuing a decision [PDF] that makes it clear that the “first sale” doctrine protects resellers, even when they move goods across national boundaries.

Of course if “intellectual property” was more like real property there would have never been a lengthy court case because it’s understood that, for example, people buying a bar of chocolate can do anything they want with it. Buyers are not encumbered after their purchase. The idea of restricting what happens to a legally purchased item is just another example of how “intellectual property” is not property as we know it and rather that copyright should be thought more of as a monopoly right. That right expires in due course, and it has important limitations like Fair Dealing/Fair Use* and the First-sale Doctrine.

My name is Dr. Dan James (aka Dan Untitled), and I am the newest trustee for Creative Freedom Foundation. By way of introduction to my new role at CFF, I would like to highlight some of the ways that BitTorrent Live is relevant to my own creative work (providing background to some of my projects), to explain why BitTorrent Live is exciting news for New Zealand artists, and to overview some of the potential implications that need to be addressed in copyright law as this technology develops.

My first art project that utilised video streaming was an event I curated entitled Intimacy and In.yer.face (2006, Litmus Research Initiative). This event took place at the former Museum of Wellington building (prior to Te Papa, a building which is now part of Massey University’s Wellington campus). Four different performance/installation artworks took place in different parts of this historical building, and each artwork was broadcast in real-time for an online audience. The artworks were all presented simultaneously. Onsite audiences wandered around the building experiencing snippets of each work. Online audiences had a different experience, navigating from page to page on the project website (which is now offline again).

For Intimacy and In.yer.face I was curator, but I have also utilised webcasting as an artist too. In the performance Breakfast Party at my Studio (2011), for example, I mixed audio and video live for an intimate audience in my studio in Wellington (morning NZ time) and webcast the mix to another audience who were situated at the Museum of Modern Art Oxford (evening, UK time).

As the linked TorrentFreak article notes (and as I can attest from experience), one key restriction of webcasting is that it becomes less technically robust the more viewers are watching. With BitTorrent live, the reliability will increase when more people tune in to the broadcast. Each person that tunes in shares bits of data with other viewers, so the larger the swarm gets, the easier it becomes to receive these pieces of video – the broadcast becomes more and more resilient as viewers join in. Webcasting is also limited because it becomes much more expensive if you intend to reach a large audience. With BitTorrent Live the inverse is true – there are no additional costs if more viewers join.

The protocol is an extremely exciting innovation for any content creator who would like to broadcast their work, and it is especially exciting news for New Zealanders. One inherent limitation to working as an artist in New Zealand is our geographical isolation from the rest of the world. Before web technologies enabled instantaneous connection, New Zealand artists needed to travel vast distances in order to expand their audience reach. The ability to reach broad audiences without the associated travel costs is a significant drawcard. With the invention of BitTorrent Live this becomes more robust and cheaper than it has ever been.

I am known as a mashup artist – I perform audio and/or video mixes regularly with the Messed Up / Bootie NZ crew. Founded by Felix Five, Messed Up is New Zealand’s longest-running mashup show (4-7pm NZ time every Saturday on RadioActive.fm). Bootie NZ is the New Zealand franchise of the world-renowned Bootie brand of mashup parties/events.

Because of my mashup work, some readers might incorrectly assume that I am advocating for BitTorrent Live as an easy way to illegally broadcast the copyrighted work of others. That is simply not the case. The creation of a mashup – combining material from two or more existing sources to create a new and unique outcome – is a relatively new artform and it is legal in some progressive copyright law systems. It is unclear whether or not it is protected in New Zealand, but it is misleading to flatly refer to the artform as illegal. The current trend in the online environment is to automatically scan audio and video content for potential copyright infringements (sometimes ordering the work to be immediately taken down, based on accusation alone and without recourse for the accused), but this trend is not fair for artists and not based on expert judgement of copyright infringement. Artists of any discipline should be treated as innocent until proven guilty. New Zealand law has some provisions for ‘fair dealing’ (‘fair use’ is a similar parallel concept in US law), but this does not provide adequate protection for artists who make mashups. A mashup is a new and unique creative outcome that should be considered distinct from the prior creative works that it references. I discuss these issues in more depth in the catalogue for Fair Deal, an exhibition I curated in 2012 (the catalogue is available for free download through the link provided).

There are numerous legal applications of BitTorrent Live that will present exciting opportunities for New Zealand artists. Musicians might want to robustly broadcast a concert to a large online audience; film-makers might want to hold an online screening of their work at high resolution; a poet might want to broadcast a reading of their work – the list goes on. The potential applications extend well beyond the creative industries too. Those in the education sector, for example, might wish to deliver a lecture to a large remote audience. A software company might want to offer a broadcast instructing users on the details of a new update. Once the mobile apps are developed, the possibilities will extend even further. The potential for illegal use does not outweigh the substantial benefits of the platform that Cohen and his team have pioneered. I certainly look forward to experimenting with BitTorrent Live myself, and I also look forward to engaging with you as the newest trustee for CFF.

Dr. Dan James

The Creative Freedom Foundation is part of the Fair Deal coalition, which strives to keep the TPP from changing New Zealand’s Copyright Act. We’ve grown to include 11 domestic partners and 9 international allies.

On Saturday, December 8th at Toto Restaurant in Auckland from 6 to 8pm, the Fair Deal coalition will host a public event on the TPP, featuring a number of flash talks from our international and domestic coalition members on TPP issues, intertwined with relevant performances and displays from New Zealand artists (see attached flyer for info on the presenters & artists).

Please join us for this event, which will feature free nibbles and modestly-priced beverages (first come, first served).

There is a budget for artist fees for contributors. If you would like your work to be considered, please get in touch with curator Dr. Dan James ASAP: danuntitled at gmail dot com. Note that this project is a very fast turnaround – the deadline for expressions of interest is 5pm Fri 16 Nov.

The CFF are glad to be part of a coalition of groups behind the Fair Deal campaign, focusing on copyright changes at stake in the Trans Pacific Partnership Agreement. The Fair Deal campaign launched yesterday. Media Release follows…
Fair Deal coalition draws attention to copyright changes under the Trans Pacific Partnership

Media Release  - 11 July 2012

Today, a coalition of New Zealand organisations concerned about changes to New Zealand’s copyright law under the Trans Pacific Partnership (TPP) will gather to launch the Fair Deal cause. Fairdeal.net.nz is a place for New Zealanders to go to learn more about what’s at stake for New Zealand copyright law under the TPP.

Under the TPP, the United States has proposed that New Zealand change its copyright law in several ways. Changes being considered include lengthening copyright monopolies by 20 to 70 years, making parallel imports illegal, placing onerous legal obligations on Internet Service Providers and increasing civil and criminal liability for copyright infringement. The common thread that draws Fair Deal coalition members together is opposition to these copyright changes.

Fair Deal members stand in strong support of the New Zealand copyright negotiators, who, according to a leaked negotiation document, have sought to work within existing legal frameworks in the TPP instead of creating overbearing new ones.

Fair Deal members include InternetNZ (Internet New Zealand Inc), NZRise, the Creative Freedom Foundation, Royal New Zealand Foundation of the Blind, TUANZ and Consumer. All organisations agree that a Fair Deal is one that opens up new trading opportunities for New Zealand without forcing the government to make copyright changes that could damage the economy, chill innovation, further restrict access to content and raise prices of copyright works in New Zealand. Each organisation has certain copyright issues that it is concerned about, highlighting the breadth of the impact that the TPP copyright provisions could have on many sectors across New Zealand.

“All we’re asking for is a Fair Deal,” says InternetNZ Policy Lead Susan Chalmers. . “Because the TPP is negotiated in secret, and because trade agreements are not at the forefront of many peoples’ minds, we have this problem of New Zealanders not seeing what is coming – not knowing what changes the TPP will bring to their everyday lives.

“The content industries are at it again – asking more from New Zealand copyright law, wanting to segment this market as much as possible from the rest of the world, despite the fact that we’re just a click away on the Internet. We don’t think that what they’re asking for is fair or reasonable, and we want the public to know about it and have a discussion about the US’ proposed changes before the deal is done and it’s too late to say anything,” she says.

The Fair Deal launch, hosted by Russell Brown of PublicAddress, will take place on the margins of NetHui, a three-day conference on Internet-related issues. The one-hour event begins at 6.30pm at the SkyCity Convention Centre, New Zealand Room 3.

The launch will feature a brief panel discussion with  Don Christie from NZRise, Neil Jarvis from Royal New Zealand Foundation of the Blind, and Susan Chalmers from InternetNZ. A discussion session will follow.  

The Fair Deal launch is open to the public. NetHui registration is not required, though RSVPs are encouraged. Please send them to rsvp@internetnz.net.nz

For more information contact:

Susan Chalmers
Policy Lead
InternetNZ
021 284 7065
susan@internetnz.net.nz

About InternetNZ
InternetNZ (Internet New Zealand Inc) is the non-profit, open membership organisation dedicated to protecting and promoting the Internet in New Zealand and fostering a coordinated, cooperative approach to its ongoing development.
www.internetnz.net.nz

ACTA was supposedly brought in to protect artists but it would have done more harm than good. Thankfully it’s been killed in a vote in the EU with 478 against and only 39 for.

Strasbourg, July 4th 2012 – The European Parliament rejected ACTA by a huge majority, killing it for good. This is a major victory for the multitude of connected citizens and organizations who worked hard for years, but also a great hope on a global scale for a better democracy. On the ruins of ACTA we must now build a positive copyright reform, taking into account our rights instead of attacking them. The ACTA victory must resonate as a wake up call for lawmakers: Fundamental freedoms as well as the free and open Internet must prevail over private interests.

Read more at laquadrature.net.

From an EU staffer on Reddit,

“As an Accredited Parliamentary Assistant, working in the European Parliament, let me say this:

We would not have noticed.

We would not have noticed ACTA until far far too late. There are thousands of pages that we should read every day. No one can follow up with all that is important, and so we only read what we have to or what seems important.

And so we missed it, for far too long. That is not an excuse, but it is a reason.

This time though we got lucky. And this time, indeed, it were the people that made the change.

Our office got:
~ 5 phone calls (considering we usually don’t get any except from lobbyists that actually is a lot)
~ 3 faxes (we never even got one fax before regarding legislation)
~ over 6000 emails. Of those around 1500 in the last week.
So let me repeat it again:

We would not have noticed.

If it hadn’t been for people from all over the world telling us how horrifying ACTA would have been for them.

We got emails from Americans, Japanese, Germans, Greeks, Spaniards, Indians, South Africans, hell even one or two icelandic.
Most of those emails were just copy & paste messages. But some were heartfelt. Some told us how ACTA would ruin their enterprise, their lives, how relatives were hurt by similar legislation, and, most heart-breakingly, how the governments of other countries are accepting ACTA without listening to their people’s worries.

So from everybody in the European legislative process that gives anything about rights and freedoms:

THANK YOU

to anyone who sent an email. And especially to those that called or faxed.

If you think your voice doesn’t make a difference, if you think that your emails are not read – then let this case be evidence that you are wrong.

If there is something – anything – in the legal sector, that you find outrageous: Call us. Bother us. Get all your friends to call us, get all your friends’ friends to send us emails.

That is the only way to be heard. Sometimes a message from one citizen can count more than ten high-payed lobbyists smooth-talking.”

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