Big issues face drafters of new copyright law

Kiwis love to create, access and share content on social media platforms, streaming services and in other ways on the internet.

Tweedie

Many of those services didn’t exist when New Zealand’s Copyright Act 1994 was last reviewed more than a decade ago.

Since then, digital developments have created a range of new opportunities to share and access copyright works. Developments in artificial intelligence, data collection, augmented and virtual reality and 3D printing all raise new challenges for copyright law.

This makes the Ministry of Business, Innovation and Employment’s (MBIE) current issues paper reviewing copyright law a welcome development. The review is designed to ensure New Zealand’s copyright regime remains robust and flexible in our digital world.

Submissions closed on 5 April 2019. But there will be more opportunities for public input, including public consultation on an options paper and the ability to make submissions on a new draft Copyright Bill.

Copyright isn’t relevant only to a select few, like writers and artists. According to Kris Faafoi, the Minister of Commerce and Consumer Affairs, “copyright affects all New Zealanders. We create copyright works when we take a photograph, record a video, or write an email, and we use copyright works by watching a sports broadcast, streaming a movie, listening to music, or reading a book.”

If we want to make the most of new and emerging digital opportunities we need a clear, robust and forward-looking legal framework for the ownership of intellectual property rights. Copyright law is a key part of this picture because it incentivises and protects the commercial exploitation of creative works.

Key issues

Who owns copyright in AI-generated works?

As artificial intelligence (AI) becomes increasingly embedded in business operations, the question of who owns the output of AI will become more pressing.

Unlike the copyright laws of most countries, New Zealand’s Copyright Act expressly recognises that copyright works may be computer-generated.

But in spite of this forward-looking approach, it’s not clear who in practice will own the copyright in an AIgenerated work – that is, who has the exclusive right to stop others from commercially exploiting it.

The author of a computer-generated work is the person who “makes the arrangements necessary for the creation of the work” (section 5(2)(a)).

But exactly who can be said to have made those “necessary” arrangements? Is it the developer or programmer of the relevant code(s) – and, if so, which one(s)?

There are likely to be several people involved. Is it the customer who is using the AI tool and who might configure it or add different inputs? For example, a bank configuring a “digital assistant” to answer customer queries specific to its products and services.

What about individuals who collect and collate data into meaningful, usable datasets to power the AI tool? Could the AI tool even be interpreted as a “person” in this context?

These questions get even harder in a machine learning (ML) context.

ML is a subset of AI that enables algorithms to automatically learn and improve from experience without being explicitly programmed by a human.

The Act currently assumes whenever a “computer” generates a copyright work, a human must have been responsible for making the “arrangements” enabling that to happen.

But while that might have been a valid assumption in 1994 when the Act was last updated, ML techniques now mean there may be no human input beyond the development of the original code.

How, then, are we meant to determine whether human “arrangements” were, in fact, “necessary” for the AI’s creation of the work?

This lack of legal certainty could inhibit commercial exploitation of AI. Why invest in these technologies if your ownership rights are unclear?

Who owns the data?

We all know data is “new oil” that greases the digital economy. And there’s plenty of discussion in the business world about who “owns” data – and even who “owns the customer”.

Yet New Zealand law is largely silent when it comes to specific enforceable intellectual property rights in data.

The closest we’ve got is copyright in a “compilation”, which could be used to stop third parties copying or distributing a database you’ve created unless they have got your permission (see the definition of “literary work” in section 2(1)).

But copyright in a compilation will exist only if your database is sufficiently “original” and you can demonstrate you’ve expended sufficient time, skill, labour or investment in producing the compilation.

But what happens when sophisticated software, rather than a human’s “sweat of the brow”, is used to compile information into databases?

Rather than looking at how much effort and creativity went into compiling a database, is it time to explicitly recognise special rights in data and/or databases under copyright law?

Contracts are often used to plug existing intellectual property law gaps. Contracting parties will often agree who “owns” certain data as between the parties to the contract. But those rights will generally apply only between the parties to the contract and not further afield, making it difficult to stop random third parties from copying your database.

Ideally the Act would provide greater legal certainty on database ownership to help facilitate the continued growth of New Zealand’s data-driven ecosystem.

Protecting taonga

Based on the Waitangi Tribunal’s recommendations in the Wai 262 report, MBIE is also seeking submissions on a new, unique regime for “taonga works” or expressions of mātauranga Māori (Māori knowledge).

If implemented, this would be a powerful vehicle for Māori economic self-determination.

Based on the Waitangi Tribunal’s recommendations, MBIE is proposing to create a new legal regime that includes:

  • a prohibition on commercial exploitation of taonga works without first consulting with, or obtaining the consent of, kaitiaki (ie, individuals with a special fiduciary relationship towards the work);
  • allowing such kaitiaki to object to any “derogatory or offensive” use of taonga works; and
  • establishing an expert commission to administer those new objection processes, maintain a register of kaitiaki and their taonga works and publish best-practice guidelines for the use, care, protection, and custody of such works.

Should NZ follow the EU approach?

The European Parliament recently passed significant changes to its copyright laws to “protect creativity in the digital age”.

The European Union Directive on Copyright in the Digital Single Market is designed to limit the sharing of copyright-protected content on online platforms. If implemented in its current state, the direction would impose liability on online platforms for copyright infringement, including for user-generated content.

It would also require online news aggregators like Google News to pay publishers for showing snippets of their news stories – the so-called “link tax”.

The legislation applies only to countries in the European Union, unlike the General Data Protection Regulation, which has extra-territorial effect.

But it is likely to have a much wider impact. US “Big Tech” companies like Google and Facebook will be affected by the legislation in their European operations.

Should New Zealand follow suit to keep up with global developments or is the European approach a step too far?

Frith Tweedie leads the digital law practice at EY New Zealand and Grace Abbott is a senior solicitor. This column was first published in cio.co.nz

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