Our Copyright Review, in Context
New Zealand is slated for a copyright review.
The last major amendment to New Zealand’s Copyright Act came under the Copyright (New Technologies) Amendment Act 2008. The point of the amendment, as one would suspect, was to update the Copyright Act in light of new technologies, notably, the Internet.
The Copyright Act was to be reviewed five years after the 2008 amendments. Today, such review would also extend to the more recent Copyright (Infringing File Sharing) Amendment Act 2011.
Scheduling around the TPP
The review was meant to take place this year. As we are now into June and there has been no consultation initiated by the Ministry, one could safely suggest that the review has been suspended on account of New Zealand’s ongoing negotiation of the Trans Pacific Partnership Agreement (TPP).
When best to begin the review is as much a question of logistics as of politics. The United States has reportedly tabled terms during the TPP negotiations which, if implemented, would require amendments to our current law. For example, leaked negotiating texts show that New Zealand has been asked to extend the duration of copyright by 20 to 70 years, depending on the type of work and the date it was published.
The TPP could also result in expansion of the regulatory regime under which Internet Service Providers must assist rightsholders in enforcing copyright online, pulling New Zealand closer into line with the US Digital Millennium Copyright Act (DMCA). We could also see a new criminal offence for the act of circumventing a technological protection measure, or “digital lock”, even in the absence of copyright infringement.
Another proposal would require New Zealand to afford rightsholders an exclusive right over temporary electronic copies, which could mean changing the provision in our Copyright Act that carves out liability for transient reproductions of copyright works as part of normal technological processes.
I have spoken with a number of people who anticipate that New Zealand will make one or more of these concessions in the TPP. They base such expectations on several factors, including but not limited to: the United States’ relative size and strength as a party to the negotiations; the fact that a number of the negotiating countries have already agreed to such terms in their bilateral free trade agreements with the US (and so, as net importers of copyrighted goods, these countries would want to see other countries bound by the same standards); and, that there will be an appreciable amount of pressure put on the New Zealand Government to gain increased access to US agricultural markets. Some people are of the opinion that New Zealand will have to agree to import US copyright law if it wants to boost meat and dairy exports to the US.
Considering the time, money and effort that goes into a conducting a copyright review, some would say that New Zealand should wait until the TPP is done and dusted. Then we could take the review, the TPP implementation, and perhaps the implementation of the Anti-Counterfeiting Trade Agreement, and fold everything into a consolidated, unitary process. Considering everything in one fell swoop makes sense logistically, especially in a small country with limited human resources. Our relevant officials are extremely talented, but are few in number.
However, the environment with respect to copyright law is changing in such a way that we need not resign ourselves to the above course of action. This shift is occurring outside of the TPP negotiations, in a more global context.
It owes in no small part to the interests of the many other stakeholders of the Internet, outside of rightsholders, including members of the private sector, civil society, the technical community, academia and Government. Each of these groups is increasingly affected by Internet-related copyright policies.
New Zealand should kick off discussions on its copyright review right now, for a number of good reasons. One of them is that the US just announced its own copyright review.
The acceptance by some Governments of digital copyright policies advanced by the rightsholder community would go to suggest that anachronistic conceptualisations of copyright remain deeply entrenched in law and policymakers’ thinking, and that how the Internet actually works does not. A good example lies in the aforementioned temporary electronic copy language, which is present in nearly all US free trade agreements.
This language likens a physical copy to a virtual one, which, if actually recognised, would become a problem for Internet Service Providers of all stripes. This is because Internet traffic is transmitted from point A to point B by making “temporary copies”. We can think of copying as how the Internet “breathes”.
Strictly applied, the right would pretty much make the Internet illegal. Approaches like this indicate that the way we are thinking about adapting copyright to the Internet is, as Professor Rebecca Giblin has put it, applying “physical world assumptions” to “software world realities”.
Doing this ignores the complexities of the Internet, and policies formulated in this way usually generate bigger problems and greater costs than those they are meant to alleviate.
Now, however, jurisdictions are warming to the idea of reform and seem to be accepting of different ways to conceptualise a system that incentivises creation. The UK, Australia, Canada, and the US have all initiated or completed copyright reviews in recent times. In March of this year, the US Register of Copyrights, Maria Pallante, invited Congress to think about “the next great copyright act, which will need to be more forward thinking and flexible than before.” (Maria A. Pallante, “The Register’s Call for Updates to U.S. Copyright Law”, Statement before the Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary, US House of Representatives, 20 March 2013).)
Ms Pallante suggested that Congress “apply fresh eyes to the next great copyright act”, which could “require some bold adjustments to the general framework”. (Ibid.) The following month, the Chairman of the United States House of Representatives Committee on the Judiciary announced that the Committee would be spearheading a “comprehensive review of copyright law”. (United States House Committee on the Judiciary “Chairman Goodlatte Announces Comprehensive Review of Copyright Law” (press release, 24 April 2013).) If the US is reviewing its copyright law, why can’t New Zealand do the same?
A principled approach
As part of normal practice, jurisdictions develop principles that help organise and direct their legislative reviews. For example, in reviewing exceptions and limitations to copyright, Australia recently released its Copyright and the Digital Economy discussion paper. Listed therein are five framing principles for reform: “1) acknowledging and respecting authorship and creation, 2) maintaining incentives for creation of works and other subject matter, 3) promoting fair access to and wide dissemination of content, 4) providing rules that are flexible and adaptive to new technologies, and 5) providing rules consistent with Australia’s international obligations.” (Australian Law Reform Commission, “Copyright and the Digital Economy (DP 79)”, Discussion Paper, June 2013.)
In the United Kingdom, following the Hargreaves Review of Intellectual Property and Growth, the Intellectual Property Office issued a report in December of last year in which it explained that the Government “needs to adapt its strong but rigid framework for copyright into one that is modern, robust and flexible”. The report was developed along the lines of three principles: “1) the copyright framework must continue to incentivise creators of content and support them in protecting their rights from unlawful use, 2) where possible barriers to competition and growth should be reduced, and 3) there are areas of life where copyright should not interfere.”
(“Modernising Copyright: A modern, robust and flexible framework”, Government response to consultation of copyright exceptions and clarifying copyright law, December 2012).
Suggestions for New Zealand’s review
If we accept that there should be a review of New Zealand’s copyright law, then what should the guiding principles for that review be?
The principles listed above are all good and we would do well to use them as a base in developing our own set. Flexibility seems to be a highly desired characteristic of next generation copyright law. The traditional utilitarian principle behind copyright also remains relevant – that creators should be incentivised by reward in order to create works the public can consume. Copyright has always been a balance between the author and the public good.
Perhaps it is time to add another party to the balancing act: the Internet. Copyright policies, when they relate to online activities, are Internet policies too.
Given the importance of the Internet to modern society, it stands to reason that the impact on the Internet of copyright policies should factor into the equation. The best copyright laws and policies would work with the Internet, and not against it.
Susan Chalmers is the Policy Lead at InternetNZ. She holds an LLM (Hons) from the University of Auckland Faculty of Law, a JD (Magna Cum Laude) from Loyola University Chicago School of Law. She is a current member of the Multistakeholder Advisory Group, which advises the Secretary General of the United Nations on the content and structure of the Internet Governance Forum.