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Overseas influence in NZ Copyright law?

Paul Matthews, NZCS Chief Executive. 06 May 2011, 5:06 pm
Overseas influence in NZ Copyright law?

One of the big stories last year was Wikileaks and their release of leaked US Government diplomatic cables. These reveal some very interesting insights into the way the political and diplomatic worlds work on an international level.

While the level of press attention has dropped, Wikileaks continues to drip-feed these cables. Last week, some interesting issues were uncovered that start to paint a greater picture around the sort of high level pressure being applied by foreign Governments pushing for revised copyright laws in New Zealand.

A Summary of Copyright vs Theft

To sum it up in four short statements:

  • Copyright is important.
  • Theft is bad.
  • Breaching Copyright is bad but is not theft.
  • There should be consequences for breaching Copyright that are appropriate for the scale of the breach.

Let me explain these statements before we examine the implications from the leaked Wikileaks cables.

Firstly, Copyright really is important. It's absolutely essential that content creators are able to protect the fruits of their labour and this applies right across the board whether discussing books, movies, software, logos, designs or any other area of content creation. This is a fundamentally important point - those that were arguing against the changes to the Copyright Act were not, by and large, arguing for the removal of all IP protections.

However Copyright in all areas has always primarily been interested in those that exploit other people's work for commercial advantage. The new Copyright law passed under urgency signals a significant and massive change from this approach, a change that appears to not be welcome by the vast majority of New Zealanders.

Before talking about that, however, let's dispel one issue that always seems to pop up during these sorts of discussions. Those that talk about Copyright being theft are frankly wrong in law and wrong in fact.

Subsection 219(1)(a) of the Crimes Act defines theft as:

dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property

Herein lies the issue. If you record Dr Who on your VCR (do VCR's still exist?) and lend it to your mate to watch are you depriving the BBC of its property? If you steal a car the owner no longer has their car. If you copy Dr Who the owner is not being deprived of their copy - just like if you take a photo of someone's car you're not depriving them of it. That's the fundamental difference between making a copy of something and stealing something.

So what if it's your Aunty who recorded Dr Who for you over in the UK then sends it to you here? That's still not permanently depriving the BBC of Dr Who hence it's still not theft - there is no direct cost to the Copyright owner.

Some argue that such actions deprive the BBC of the ability to exploit commercial advantage from the programme. However that's a different issue and a civil matter rather than a crime - which is where Copyright belongs.

More to the point, it's not available in any commercial form anyway. For instance, if you could immediately buy it on iTunes for $1 an episode but you shared your Aunty's copy instead they could argue for the loss of that $1 of lost revenue (although that would still be a relatively dubious argument). But the fact is you can't.

Breaching Copyright is certainly nothing new. At the risk of showing my age, when we were kids we used to tape the radio on our tape decks and make custom compilations of our favourite music. Some time later we used to record TV shows and share the tapes with mates that had missed the programme at school. Everyone did it. After that we'd burn our own CD compilations. However technology has changed - now kids share their "tapes" on the Internet and in iPods, but the principle is still the same and I'd certainly suggest that it's still as widespread and accepted in many communities (especially amongst kids) as it always has been.

And realistically, nobody's tried to prosecute people for recording music from the radio on their tape decks. Nobody's tried to impose fines on kids sharing video tapes of Dr Who from last night's TV with their mates who missed it. Nobody's tried to take action against those technically breaching copyright individually where there's no commercial gain.

Until now.

The Copyright (Infringing File Sharing) Bill

A couple of weeks ago all of this changed with the passing of the Copyright (Infringing File Sharing) Bill under urgency.

This new law goes far further than anything else in the past and imposes a regime of notices, fines and inevitably Internet disconnection on those who get a copy of something from their Aunty. You would have seen in Newsline a couple of weeks ago the standard of debate and understanding by those MPs who passed the law - it really wasn't pretty.

One, of course, has to ask why people infringe copyright. I would argue that the vast bulk of people do it because there's no realistic alternative if they want to enjoy the content. Most new TV programmes aren't available for $1 on iTunes and rights holders try to impose geographic boundaries from an outdated distribution model onto the new distribution model - the Internet.

In reality it's the model that's broken. By and large, people are honest. If content was available online freely (as with TV) or at a low cost, or in other words if there was a viable alternative to copyright infringement it would be successful - just like iTunes and similar models have been so successful (iTunes recently celebrated its 10 billionth song sold).

So why would the New Zealand government push through legislation seemingly to protect an outdated business model against activity that has occurred for decades? Why would they now impose a complicated regime of notices, fines and internet disconnections? Why would they impose additional compliance and other costs on ISPs and others, not to mention the huge complications for those providing public-access Internet?

Perhaps the Wikileaks cables released over the last week shed some light on this.

Wikileaks cables reveals US influence on NZ Copyright law

As reported by Computerworld and others, Wikileaks recently released US Government cables talking about New Zealand's Copyright laws and their views and actions on them.

The cables reported a number of interesting things. For starters, it made it clear that the suspicions of high-level lobbying and interference in New Zealand's legislative process appear to have substance. As well as clear lobbying and offering to re-write New Zealand's Copyright laws, the US Government pushed for the establishment of a US funded and arguably US controlled Government "intellectual property enforcement unit" with an offer of over $500,000 in cash in the first year.

Yes, the US Government appears to have offered the New Zealand Government over half a million dollars if we changed our Copyright laws to match the US view of the world and enforced it within New Zealand.

What is not clear from these cables is the amount of influence the US Government has managed to actually secure and, for example, how much input they had in the drafting of the new Copyright Bill pushed through by the New Zealand Government under urgency last month.

With the upcoming Trans Pacific Partnership Agreement also seemingly being seen as a vehicle for the US Government to enforce their world view of copyright and intellectual property this story is not dead. Some argue that the Copyright laws were pushed through in preparation for TPPA (so it didn't look like we were changing laws because we were told to in that Agreement) but either way, this really is one to watch.

Anonymous strike

In a related story, the online hacker group Anonymous appears to be protesting in their own way currently with an apparent attack on both the NZ Government website and the NZFact site in protest at this new law. NZFact is the US-funded lobbyist in New Zealand at the forefront of pushing for tighter Copyright controls in New Zealand.

Just to be clear - NZCS doesn't support DDOS attacks and other destructive forms of protest - it actually adds weight to the sorts of troubling throwaway comments from some that the Internet is a "wild west" needing to be brought under state control. However it is worth noting the level of international interest and outrage in this new law.

These truly are troubling times and we'll be keeping a close eye on developments - stay tuned.


Paul Matthews is Chief Executive of NZCS, the professional body of the ICT sector.


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Christopher Wood 13 May 2011, 11:57 am

Great summary. Earlier I listed 13 reasons why the new law is bad for everyone (reproduced at www.geekzone.co.nz/juha/7615).

However I'm debating this with a friend of mine and he pointed out Subsection 219(1)(b) of the Crimes Act, which continues to define theft as:

"dishonestly and without claim of right, using or dealing with any property with intent to deprive any owner permanently of that property *or of any interest in that property* after obtaining possession of, or control over, the property in whatever manner."

Does this apply to copying or not?

Paul Matthews 14 May 2011, 1:32 am

A good point and one we've considered previously.

In that context "interest in" means "stake in" (ie I have interest in a business if I own part of it). Hence no, someone copying it doesn't deprive the owner of their ownership.

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