What do New Zealanders need from a Copyright Law Review?

 Paula Browning 127X194                 Can you imagine a world without books, music, movies and games? Picture your favourite café without the background hum of music, the rustle of newspaper, the art on the walls. Pretty colourless isn’t it?
  • By Paula Browning, Chief Executive, Copyright Licensing NZ and Chair, Copyright Council of NZ.

In recent times copyright has almost become a dirty word. It is seen as a roadblock to innovation and used by the tech giants to persuade the general public that they are being prevented from gaining access to music, books and movies that they would, without copyright, be able to have.

It is probably true that some aspects of copyright law have not kept pace with the rapid advance of technology. New Zealand’s Copyright Law was enacted in 1994 and updated from a technology perspective in 2008.

Five years is a long time in the tech world and the developments of the past five years have been considerable but are they really getting in the way of New Zealanders being able to enjoy our music, books, games and movies?

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. New Zealand has current exceptions in our copyright law that enable certain users, such as libraries, education organisations and the visually impaired, to do more with creative works for their own purposes.

We have recognised that the dissemination of our culture is important to society and these exceptions enable that to happen. Beyond the scope of these exceptions, our book, music and screen sectors also offer collective licensing that delivers cost-effective access to even more content than the exceptions.

What is often not acknowledged is that copyright generates economic value. By recognising the right of the person who makes something creative to be able to decide how, when and for what value that content can be used and sold, we are enabling creative industries and creative individuals to generate an economic return and employ people – lots of people!

Recently, on an airport shuttle bus, I sat next to a young Wellingtonian – a scene lighting engineer – who had worked on the set of Lord of the Rings. He spoke passionately of his involvement with this series of movies and how much it meant to him to work with the amazing people who brought the movies together. If any of those movies had prematurely found their way on to the internet, the economic return to the investors would have been reduced and future productions put at risk.

Knowing that I work in the copyright world, people assume that I’m opposed to the likes of Creative Commons and Mega. However it’s not true. Creative Commons’ licenses give people choice – the choice to decide how they want their work to be used – this is no different to copyright. Copyright enables the creator to say their work is of value and they want to be asked and/or paid before it is used. The owners of Mega have created a technology product that they expect their customers to value sufficiently to be prepared to pay for – no issue with that. What I do have an issue with is when copyright is used, as it has been by Mega, to attempt to convince people that they’re being deprived of something that they presume they have a “right” to get.

The internet and technology have changed society’s expectations of both the availability of, and access to, information and content – we’re now a demand society and expect to be able to get what we want, when we want it and how we want it – and NOW! Some of the many statements made by Mega’s owner encourage this expectation.

Technology developments have made it easier for New Zealand musicians, writers, game developers and other creatives to both make and sell their music, books and games to an international audience. The internet brings us closer to the USA, Asia and Europe where quality New Zealand creative content can be bought with the click of a mouse.

All of this opportunity also comes with a risk – the risk that digital content will be made available in ways that the creator had not intended and which will undermine their economic return and ability to invest in future content.

In Law News last month (Issue 17, 14 June 2013), Susan Chalmers, Policy Lead at Internet NZ, advocated for commencing a review of New Zealand’s copyright law now, rather than awaiting the outcome of the Trans Pacific Partnership Agreement (TPP). The fact that the US and Australia have both commenced reviews should, according to Ms Chalmers, kick New Zealand into action too. I agree with Ms Chalmers when she says that some of the thinking around copyright law as it relates to the internet needs input from people who are fully conversant with the technology.

We have historic examples in New Zealand of members of parliament who have a complete lack of understanding of technological developments, as evidenced by some comments during the debate on Section 92a and the subsequent Section 122 of the Act.

However, the suggestion that we follow the US, Australian and also the UK examples of forging ahead with legislative reviews needs examination. “Principled approaches” such as those framed in the Australian Law Reform Commission’s report are all very well, but where is the economic evidence and financial modelling required to ensure that the process and any recommended changes to the legislation are robust and will deliver an outcome that works for content owners, users and the economy? When a particular legislative framework has been in place for a number of years (nearly 20 years in New Zealand’s case), individual businesses and even entire sectors of the economy have been built around that framework. Sudden and ill-informed change has the potential to undermine and diminish the value of our creative economy.

What we have seen in recent times is a monumental shift in the ability of our creative industries to both determine how their content is used and disseminated and to earn a return from their investment into that content. Instead, we have technology giants – the Googles, Amazons, Apples, etc. – making billions on the back of others’ creativity.

We can’t, and shouldn’t want to, wind the clock back. But we do need to think very carefully about how we want to frame our future legislation so that it ensures that the business of our creative economy can develop and grow. If we don’t, we’ll end up with that colourless café, and the wealth of New Zealand music, books, TV, movies, games and newspapers, that are so much a part of who we are as a country, will go.

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