Review of Copyright Law – Well Overdue

One of the difficulties lawmakers have is keeping the law up-to-date. This is particularly difficult in the Internet era where developments continue to outstrip the law. Copyright law lies smack bang in the middle of the debate. Here are a few musings on the topic.

Mid last year Susan Chalmers, the then Policy Lead at Internet NZ, expressed concerns about what she saw as the shifting sands of digital copyright policies and opined that the current Tans Pacific Partnership Agreement (TPP) negotiations were probably holding up the planned review of the Copyright Act, which we plan to take place in New Zealand in 2013. We now know that the TPP is still some way off being finalised.

Susan Chalmers also expressed misgivings about the apparent disconnect between two different world realities – what she referred to as “physical” and “software” realities, many of which were overlooked in government policy reviews. She recommended we should get on with it, adopting a principled approach, similar to that adopted in Australia with the recent Copyright and the Digital Economy discussion paper (which reviewed exceptions and limitations to copyright), and the similar review in the United Kingdom (the Hargreaves Review of Intellectual Property and Growth).
It is worth noting that both of these discussion papers accepted the fundamental proposition that authorship and creation need to be acknowledged and respected but at the same time fair access and the need for wide dissemination of content also needs to be recognised and barriers to competition and growth reduced.

Paula Browning, the Chief Executive of Copyright Licensing NZ and Chair of the Copyright Council of NZ responded to these comments. Ms Browning cautioned against moving too quickly and argued we need to think very carefully about how we want to frame our future legislation to ensure our creative economy can develop and grow. She questioned whether there was any economic evidence of the need for change? Ms Browning also contended that the main underlying 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 such content.

Andrew Easterbrook of WRMK Lawyers then commented on the issue, disagreeing with the identification of the underlying premise of copyright. In challenging this view he pointed to the fact that copyright was borne out of the desire to monopolise and control the printing press in the 1500s and 1600s and that the Statute of Ann in 1710 was more to do with regulating and control, not the reproduction of creative content.

That may be right. However, whatever might have created the initial impetus for copyright in earlier days I agree with Ms Browning that the fundamental premise upon which copyright is based today is to balance competing rights and interests – primarily those of authors and users of their works. This is the critical balancing act which copyright is struggling with at the moment and why, in my view, the promised review of New Zealand copyright law cannot be put off much longer.

Mr Easterbrook argues that delays or restrictions in the availability of content are no longer acceptable to consumers, who are increasingly finding alternative means of sourcing content in a manner that supposedly “meets their expectations”. I accept that that is often a reality in the modern Internet age. That often means that content which is either difficult to access or expensive to purchase is copied, often on a whole-scale basis, thereby denying the author reasonable compensation for their creative efforts.

This is neither fair nor legal and why the Copyright Act, including its exceptions and limitations are in urgent need of review. In my view, if the right balance can be struck most fair minded people will abide by the law. On the other hand, if the balance is wrong they will ignore it. This can hardly be desirable, either for our creative industries or society as a whole.

That is why in my view review of the Copyright Act should not be put off much longer.

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