Reconsidering the rights and wrongs of copying

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An original work can now be copied and shared with anyone online in a matter of moments - thanks to the internet and digital technology. But that wasn't the case when our main copyright law was written 23 years ago. Mediawatch looks at what's at stake now the law is up for review.

Most copyright disputes don't make headlines but the recent court case over the National Party’s use of a soundalike version of Eminen's hit Lose Yourself was an exception.

"The two-week hearing threatened to descend into farce, with lawyers grappling to find the line between imitation and copying. Lose Yourself was repeatedly played to the courtroom at full volume," the New Zealand Herald reported when National eventually ended up with a $600,000 bill last month. 

It's not often lawyers and a judge are subjected to the strains of Led Zep's Kashmir or Twinkle Twinkle Little Star in the High Court in Auckland. It's no wonder the case featured prominently in the TV news bulletins.

It got the attention of media overseas too.

Comedian John Oliver found it hilarious on his HBO show in the US; Vanity Fair reported the outcome and tech website ArsTechnica was impressed that the PDF of Justice Helen Cull’s 132-page ruling posted online included links to the MP3 files of the relevant tracks.

It's amazing what you can do on the internet these days - though that’s also the big problem with copyright violation and the law today.

What's the problem?

The Copyright Act 1994 allows owners of original works to control the copying, publishing and sale of the work to the public, the right to perform or show it in public - and the right to give the right to do all that to someone else.

Much of law was written more than 20 years ago, before the internet had such a big impact on ownership. Today, internet users, internet companies, the content creators and media companies are at loggerheads over what is fair treatment of copyrighted works in the internet age.

When a review of the law was announced last June, a abcinet paper warned the government would "not be able to resolve all issues to everybody's satisfaction".

Public consultation begin next year, but those with a big stake in the outcome are setting out their stalls.

Last month, the New Zealand Screen Association - an anti-piracy group representing movie and TV industries - called a conference in Wellington to chew over what’s at stake.

Keynote speaker Ruth Harley - a former head of New Zealand on Air, the New Zealand Film Commission and Screen Australia - said the value of Kiwi content had been "hollowed out" in the digital era while those disseminating the work online were making money. 

"The disseminators are allowed to take the value as opposed to the creators owning the value. Over the last ten years the value of copyright in music, books and audio-visual content in New Zealand has dropped 35-40 per cent. The revenues of the likes of Google, Amazon and Apple has increased 200 per cent," she told Mediawatch.

But surely the makers of Kiwi TV shows and movies want the widest possible audience to see them?

"The public interest has never been contrary to the creators' interest, which should not be hollowed out," she said. 

"I don't think there is a public interest in getting things free. I pay for Netflix because it is the right and proper thing to pay for creative work," she said.

Port in a storm

So-called “safe harbour” provisions in copyright laws around the world address the digital environment and the obligations of the disseminators.

For example, copyright law in the US has provisions which protect internet service providers from users breaking the law, if they take steps to block material that allegedly infringes copyright when they’re notified of it.

Phoenix Center for Advanced Legal and Economic Public Policy Studies chief economist George S. Ford is an expert on the topic in the US, and told the recent Balancing Copyright symposium in Wellington that current laws were too weak.

Disseminators like Google and Facebook needed to do more to stop piracy and the age of New Zealand's copyright laws meant a rewrite was urgent, he said.

"In the old days if you wanted to copy a book you'd have to sit at a copy machine and spend hours going page by page. It wouldn't look very good and then you would have to mail or copy it again. There was a natural barrier to copying," he said.

"Copying is ... lossless and almost costless. Within two minutes you can rip a CD and post it online and the whole world can have it in less than half an hour.

"In internet time it's been eons since these laws were written. We have seen that they don't work well."

Safe harbours largely shield intermediaries from “crippling liability” in return for cooperative action on infringing materials.

"Safe harbours were implemented to help the internet grow, but as cyberspace reaches the age of maturity it is reasonable to expect more from online intermediaries facilitating the distribution of infringing and disturbing content," Dr Ford wrote in a recent economic analysis.

"Strict liability for online intermediaries may not be the answer, but neither is absolute immunity."

"If they are broad, the online intermediaries - like YouTube, Facebook, Ebay - can get away with a lot. It can discourage good behaviour and penalise firms that behave responsibly with infringing content," he said. 

"Society will pay the cost for the theft of intellectual property and it hurts smaller companies and creators more. Smaller economies need to be alert. We need an internet most people will be happy with when it's not a source for stealing intellectual property," he told Mediawatch.

This past week, copyright in the digital age was also a hot topic at NetHui - an annual gathering for "anyone and everyone who wants to have a say on the internet," according to organisers Internet NZ. 

This year’s theme was "Trust and Freedom On the Internet." 

"We don't want to have to keep modernising [the law] every time a new technological development comes along," Internet NZ's chief executive Jordan Carter said.

"We are looking into whether there should be a fairly broad exemption to copyright for fair use or fair dealing," he told Mediawatch.

"Any legislative review where there's money at stake has monied interests pushing. Rights holders like the big American ones see New Zealand as a test case . . . to push tighter controls of content and copyright. They'll be looking to tighten up on exceptions, to go further in terms of penalties and to make it harder for people to get news content that's not controlled by the content providers.

"The internet is a huge engine for information and communication and we shouldn't tie it up with bad copyright law. The key question here is: is there enough content, enough movies, enough books? The answer is yes," he said.

"We should be working out ways to work with technology, not trying to get back to the old days through copyright law," he said.

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