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Copyright updating, please wait

James Ting-Edwards, Senior Policy Advisor, InternetNZ. 11 April 2019, 5:00 am
Copyright updating, please wait

InternetNZ's Policy Team has just written a huge submission on the Government's review of copyright. So what are the issues and why do they matter? 

Here's the really short version: our 25-year-old copyright law is out of date and badly needs an update to meet the needs of New Zealanders in the Internet era. The long, long version is in our 58 page submission, which you can read if you really want to. If you want to read the Goldilocks version then stick to this blog post! We think it's just right, and will pair well with a hot bowl of porridge to welcome colder weather and the end of daylight savings.

Copyright law from cassette tapes to Spotify

Once upon a time, Parliament created New Zealand's current copyright law. That time was 1994, when phones had cords, the Internet was mostly for academics, and I was listening to the cassette single of Supergroove's "Can't Get Enough" on my Sony Walkman. In the 25 years since, we have seen big, rapid shifts in technology, which have changed the ways New Zealanders access and share information and entertainment. Like in music, where analogue cassette tapes were replaced by digital CDs in the 1990s. Then in the 2000s, you could buy songs as digital downloads, and an iPod could hold "1000 songs in your pocket". In 2012, Spotify launched in New Zealand, offering 16 million songs on your smartphone, supported by advertising or a fee of $7.49 per month. In 20 years, we went from ten songs in your pocket to tens of millions, and music streaming went from nothing to earning $74.2 million in New Zealand revenues last year. These shifts for music reflect bigger and broader shifts, as the Internet has become vital to the ways New Zealanders learn, work, and play.

We think copyright needs an update for the Internet era

Copyright serves a very important goal, aiming to benefit New Zealanders by encouraging people to make and share original works. To serve this goal, it creates legal rules that regulate copying in a very broad way. How broad are these rules? Well, they apply automatically to cover basically anything that expresses information or ideas in a fixed form. That includes anything written or drawn, recordings of sound or images, and things like sculpture crafted in other ways. And they require permission to copy or share those things.

Because it is so broad, copyright law impacts the Internet in a few different ways. At a technical level, Internet connections work by digital copying and sharing of information. Beyond that, many of the ways New Zealanders use and benefit from the Internet are regulated by copyright rules. Our current rules restrict activities that seem pretty normal and widely accepted by New Zealanders, like forwarding email attachments to share information at work, making online backups, or using an animated GIF in online conversations. We think that those uses are often reasonable, and our law should recognise that. Beyond those specific uses, there are broader challenges for our copyright law. The biggest challenge is the way our law is updated over time, as the needs and expectations of New Zealanders shift with new technologies and distribution models.

So what did our submission say?

InternetNZ supports the goals of copyright, but thinks our framework needs a refresh and rethink to work well in the Internet era. Some of the key points in our long submission are:

Copyright is about people and culture, not just business

Copyright affects all sharing of works, whether it's for economic reasons or not. We think copyright should consider personal, social, and noncommercial aspects of New Zealanders' wellbeing, recognising that copyright has a range of impacts on cultural participation particularly on the Internet. We also think copyright should explicitly consider New Zealanders' human rights.

Our law needs better ways to handle change over time

New Zealand's historic approach to updating copyright law does not work for the digital era. Updates for specific technologies have been quickly outpaced by continuing change. For example, reforms in 2008 allowed music from a CD to be shifted onto an iPod, but arrived in the smartphone era. New provisions in 2011 focused on infringement through file-sharing software, but were little used, and are now largely out of date thanks to music streaming services. In other words, our law is too specific to old technologies, and getting it just right means being a bit more flexible.

We think the best way to make copyright law more flexible, so it can respond better to change, is through rethinking the copyright exceptions that balance the monopoly rights owners get from copyright. Those exceptions are meant to allow for reasonable activities, where it would not be efficient or fair to require an owner's permission. The current exceptions are a bit narrow and tech-specific, and don't allow for things like online backups of things New Zealanders have bought legitimately. There are lots of ways our law could be more flexible. New Zealanders are already familiar with open-ended rules in privacy law, which gives a set of privacy principles that can be applied in context, and in consumer law, which says products have to be fit for purpose, regardless of what their purpose is. We think that drawing lessons from these local laws, and from experience with more open-ended exceptions in the USA, Israel, and Singapore, can help guide the development of copyright law that navigates change better. We also think New Zealanders need much better guidance on the responsible use of copyright protections and exceptions, regardless of how our framework develops.

Online enforcement needs to work with the Internet in New Zealand

Our copyright law recognises that it is not always fair to blame Internet service providers for what their users do online. We support careful consideration of when and how user actions should be the responsibility of service providers, and of how to treat copyright as a private economic right. Based on that consideration, InternetNZ does not support content blocking as part of the copyright enforcement toolkit in New Zealand. Content blocking measures would involve financial costs, technical compromises, and would fail to ensure that New Zealanders have the protections and benefits of their basic human rights. Without both robust evidence that they shift user behaviour in the market, which we believe is lacking, and rigorous processes to assess and mitigate their harm to New Zealanders, we do not think content blocking measures can be justified in copyright law, and strongly oppose them.

Update downloading… please wait

The Government has kicked off a review, to hear about issues with copyright, and think up ways to address them. We've just sent in our submission on the Issues Paper, which is the first bit of a process that will take months, maybe years. We think our law really needs an update, but it's also important to be careful and allow time to consider the people, issues, and concerns properly. Not too fast, not too slow, but just right.

For the next few weeks, the team at MBIE will have a busy time reading long, detailed, and diverse submissions. We wrote almost 60 pages, and there will be others who care as much as we do, and who also had a lot to say. Those submissions will raise issues, which MBIE will gather up and think about. Once they have the issues sorted, MBIE's team will be thinking about policy options.

At some point, with enough time for careful consideration, but hopefully not too far into the future, MBIE's team will put out an options paper. The options paper will set out different policy options which could help with better copyright law. There will be a chance for New Zealanders to comment on those options.

We'll be watching and engaging in that process. In the meantime, our team is keen to to keep talking with officials, and with other people who care about updating this law so it serves New Zealanders for another 25 years if need be.

Here's where to find our submission:

As a PDF: InternetNZ Submission on the Copyright Issues Paper (58-page PDF)

As a webpage with all the content, but less pretty formatting: InternetNZ submission - HTML

James Ting-Edwards's blog

 

James is a senior policy advisor at InternetNZ. Reproduced with kind permission.


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