Paula Browning looks at the state of copyright in this country and where it might be headed.
Have you ever noticed how people’s reactions to different forms of intellectual property vary? If Fisher & Paykel takes action to enforce one of its patents, no one argues that they shouldn’t be doing so. We’d all be worried about the impact on F&P’s income and the potential for our market to be swamped with shoddy take-offs. If someone tried to use McDonald’s trademarked M, no one would argue against McDonald’s right to protect it.
So why is it that when it comes to copyright, the reactions are almost always negative? Copyright gives rights to both the creator and the user of a work. If I built a house, you’d have no argument with my choosing whom to sell it to. So why, if I write something, can’t I choose how it can be used by others? Yet I have been amazed in the past 12 months, since I took up my CEO position at Copyright Licensing Limited (CLL), by how little the public knows about copyright, and also (this is far more concerning) how little our young people know.
CLL advocates for retaining and developing copyright law, and takes action against copyright infringers. Most of its income derives from licensing in the education sector. A CLL licence allows a school to use up to 10 per cent or one chapter of a work for instructional purposes (more than three times what the Copyright Act allows without a licence). Every year, CLL gathers data from a sample of schools to find out which works are being copied. On the basis of this information, it pays out the net licensing income to publishers, who then pass on half to the creators of the work.
This data gathering also gives us an opportunity to talk with school management and staff, and provide some professional development on the subject of copyright and what the schools’ CLL licence gives them. But somehow we need to get the message through to the students. Stories often come to our attention that highlight why our kids need educating about copyright and the part it plays in respecting other people’s creativity.
An intermediate school asked us to talk to a class about copyright. At the end of the session, one of the 11-year-olds asked, “So it’s not OK to blue-tooth music from my phone to my mate’s then?” I was impressed with the children’s digital skills but not by the fact that they were sharing someone else’s content on a mobile network.
I’d really like to tell this story to whomever it was who decided the Infringing File Sharing Amendment legislation, due to be implemented on 1 September and probably the reason we were called into this school, didn’t need extending to mobile networks until October 2013 because you can’t share files that way yet. They need a lesson from this 11-year-old.
Tale two involves a secondary school with a strong arts programme that holds an annual art auction to show students’ works and raise funds for materials and equipment. One student loaned her photography portfolio to a fellow student. A couple of weeks later, a painting of one of the photos from the portfolio appeared in the collection to be sold at the auction. Permission to copy the photo had been neither sought nor given.
The two students finally agreed that the painting be displayed but not sold, and the rest of the photography and painting classes learned a salutary lesson about respect for other people’s creativity and work.
So what about the new infringing file sharing legislation? It’s an attempt to pull back the tidal wave of illegal internet sharing of copyright works. For years, the music and movie industries have had their works illegally uploaded to the internet then illegally downloaded by hundreds, thousands, even tens of thousands users. The consequential loss of income can only be imagined.
Some websites (like the now-closed Limewire) have been developed solely to scan the internet for illegal content and make it available through a central portal. The owners of Limewire have recently agreed to pay 13 music companies $US105 million for breach of copyright. The functionality of websites originally established for legal activity – the Bit Torrent sites, for instance – is now being used almost exclusively for illegal activity. Internet users looking for illegal content know where to go for what they want.
This trend impacts significantly on the publishing sector, and has become even more important with the development of digital publishing and ebooks. Overseas publishers are investing millions to combat piracy. When looking at the books available on one site, we found a new release by a renowned author that had been downloaded 850 times in five days. And this was just one website – the title was available on many others. This is not what we want for the publishing sector in New Zealand.
Amendments to the Copyright Act allow rights-holders to issue detection, warning and enforcement notices (colloquially known as the “three strikes”) to internet account-holders who illegally share files containing copyright works. This system of enforcement addresses the way we now access content, but the underlying principle of copyright hasn’t changed. If you want to access someone else’s copyright work, you either buy it (if it’s available) or you ask permission – simple manners, really!
So where is copyright heading? In New Zealand, as in many other Commonwealth countries, it’s heading for review – Minister of Commerce, Simon Power, recently announced a review of the Copyright Act for 2013. But looking at the outcome of similar reviews in countries with similar copyright legislation to ours – Canada, Ireland, the UK and others – gives cause for concern.
Most such reviews are suggesting changes to align law more closely with the US model of fair use, rather than with our own fair dealing. Fair use gives users much more freedom in what they do with a copyright work than does fair dealing. It allows copyright material to be used without the rightsholders’ permission, for, say, commentary, criticism, news reporting, research, teaching and library archiving. It also reduces the opportunities for creators to receive royalties for the secondary use of their work.
Is that what we want for New Zealand authors and publishers? I think not.
CLL is working closely with its international partners to learn about legislative developments in their countries that can inform our own lobbying in New Zealand. The time to ensure MPs and government officials understand the potential economic loss to New Zealand and New Zealanders from changes in our copyright laws starts now. Commentary on the passing of the Infringing File Sharing Bill demonstrates how little some people in power understand copyright and its relation to our creative and cultural industries. They need to be informed and educated before they give away our rights as creators of unique, high-quality New Zealand literary works.