Creative differences - another approach to copyright

Andrew Easterbrook                  Paula Browning, Chair of the Copyright Council of NZ Inc and the CEO of Copyright Licensing Ltd, wrote a piece in Law News (Issue 20, 5 July 2013) entitled “What do New Zealanders need from a Copyright Law Review?” I would like to comment on three of her points. 
  • By Andrew Easterbrook, WRMK Lawyers, member of ADLS’s Technology Law Committee

The first is her claim that the premise of copyright is to balance the right of the person who made something creative with the right of the person who wishes to use creative content. I disagree.

Copyright was in fact borne out of the desire to monopolise and control the printing press in the 1500s and 1600s.

Lobbyist publishers got (most of) what they wanted in 1710 with the Statute of Anne, and it is important to note that the Statute did not prohibit the copying of things by hand. It was the use of the printing press – the use of technology – that the Statute sought to regulate and control, not the reproduction of creative content. (For further information, see Judge David Harvey’s blog post which goes into some detail on the history of copyright, available at

The second point is Ms Browning’s warning that developments in technology create a risk that digital content will be made available in ways that the creator had not intended. Ms Browning also notes that technology has changed society’s expectations about the availability of content.

Both statements are accurate, but Ms Browning suggests that they are both Very Bad Things. Unfortunately, however, for supporters of a 1710-style “control the technology” law, the changes are here to stay.

The internet is borderless. Geographical restrictions are unfortunate symptoms of a long history of law developing differently in different countries, and the notion of “geography” makes almost no sense today.

Delays or restrictions in the availability of content are no longer acceptable to consumers who will find alternative means of sourcing content in a manner that meets their expectations. I expect that in the near future, society will simply no longer accept that the mode or geographical timing of delivery is something the rights holder should be able to determine.

Already, rights holders attempt to do so at their peril (see eg. the widespread downloading of Game of Thrones as a public backlash to its lack of availability).

Instead of continuing to advocate for rights holder- and control-focussed legislation, why are publishers not focussing on finding a way to monetise modern demands and expectations? Louis CK did. The comedian’s latest stand-up show was available for purchase here in New Zealand at the same time as the rest of the world and at the same price.

He made genuine efforts to engage with fans.
The download was fast, hassle-free and DRM-free. As a result, I very happily paid him for it. The
same (to HBO’s detriment) can’t be said for
Game of Thrones.

The internet does prioritise immediacy and a “now” culture. But it also prioritises and rewards human connection. Amanda Palmer, Trent Reznor (both musicians who have used social media to great effect) and Louis CK are some of the most successful examples of adapting to the modern demands of content delivery.

A very large part of their success is due to extensive, human engagement with fans via blogs, Twitter and Reddit (a social media site which is proving that community engagement produces great results). Modern technology enables those connections with a massive audience. That should be leveraged rather than demonised.

Designing copyright law around the restriction and control of technology ignores the inevitability of progress. Technology develops in ways that suit society as a whole, not just rights holders. The current problem certain rights holders are facing is that they are fighting against technology itself. It is a fight they will lose.

The third and final point is Ms Browning’s attack on Google, Amazon and Apple who apparently make billions “on the back of others’ creativity.” Those companies generally make money from content delivery, not the content itself.

They are therefore making billions on the back of their own creativity with respect to content delivery. All three have found a way to give consumers what they want, when, where and how they want it, and they have been generously rewarded. Why can’t the creative industry do the same?

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