Some might say
that copyright is redundant on the worlds largest copying machine,
but toll gates are often imposed by those who have the power to do
so, impose additional costs on everyone else for the profit of
Should NZ have a
fair use exception to our copyright law
Comes from US law,
an exception to copyright infringement, based on the purpose and
character of the use, the nature of the work, the amount reproduced,
the effect of the use on the value of the copyrighted work,.
Judge made law,
from case law not codified in statute.
NZ does not have a
broad fair use exception, but rather a list of very specific
exceptions for news reporting, educational uses, libraries,
transient reproduction etc.
Would fair use be
a good way to resolve copyright concerns online.
NZ copyright act
is next up for review in 2013.
Lack of codified
definition in the US has led to problems with interpretation of fair
use principle, so is not a quick fix for everything.
Using excerpt from
video posted on YouTube can give rise to conflicting fair use
claims, because YouTube is governed by California law not by NZ law.
So jurisdictional conflicts between different fair use regimes make
them hard to reconcile.
Difficult to draw
the line, and many cases where something that was fair use under US
law would not fall under one of the specified fair dealing exceptions
under NZ law.
Sense of fairness
– critical commentary and education generally accepted as being
fair use, other areas may be more contentious. Also problem with
enforcement – copyright over music, books etc is different now
that they can be copied digitally. Some argument that private
non-commercial use of all copyrighted content should be permitted,
because to effectively and fairly prevent it would require living in
a police state.
definitions in many areas – transient copying is allowed, i.e.
videotaping a TV program so you can watch it later is permitted
under copyright law, but no indication of how long you can keep it
for – if you have a program recorded on VHS tape from many years
ago that you never got around to watching, is this still ok because
you never watched it yet? How about if you have watched it once or
twice, at what point should the copy have to be destroyed? After one
time of watching it? No case law or statute to clarify this kind of
issue in most areas.
Point that 25
million downloads of a music track does not mean 25 million lost
sales – how many of those downloads would have occurred if people
had to pay for it, as this would be a more accurate measure of how
much potential profit has been lost – if content is only consumed
in the first place because it is free, then how can this be claimed
to be a loss.
If content was
never available for sale in NZ, how can there be any loss to the
copyright holder if the consumer would never have been able to buy
it legally – indeed if the copyright holder sues, then this is a
windfall profit as they do not have to pay distribution costs –
argument that loss should be calculated on the basis of the cost of
a legal copy in that jurisdiction, and if legal copies are not sold
then the cost is zero.
On the other hand
downloading entire works cannot be fair use because it is copying
the entire work, not just an excerpt. If you don't fall under one of
the specified heads of exception in NZ then there is no general fair
use provision. No "parody and satire" exception in NZ,
unlike many overseas jurisdictions.
notices only apply in the USA and have no jurisdiction in NZ – but
note that people visiting the US have been arrested at the border
after ignoring DMCA notices sent to them while living overseas.
copyright regime would be highly desirable, but trade agreements are
integrated into domestic legislation by governments individually, so
even when they all agree at the conference, this does not mean that
the laws passed when they get home will be identical.
to be made between the letter of the law and the way it is actually
interpreted and enforced – people who do things that seem like
fair use are unlikely to be prosecuted even if it falls outside NZ
law – increasing tendency for people to assume that US law they
know from TV also applies in their own jurisdiction.
and education needed for the public, as most people have little idea
of exactly what the limits and exceptions of copyright law are.
Lobby groups in
the US are increasingly dictating the terms of copyright law and
enforcement regimes, even in countries overseas like NZ. For
instance the provisions in NZ's new copyright law to cut off peoples
internet access for file sharing, were directly as a result of
overseas pressure and would not have been passed by NZ MPs on their
own account, question of how far commercial property rights can
trump fundamental human rights (which internet access is
increasingly accepted as such).
On the other hand,
if internet companies can cut off service for not paying your
internet bill, this shows that while internet access may be a human
right, it is still one you are expected to pay for!
Fair dealing laws
in NZ mean that private photographs which are released into public
domain can be freely used by any media organisation without
attribution – copyright law at present favours large corporate
interests over the interests of individual content creators who have
not chosen to license their work to a large entity.
If you buy a
physical book, you can lend it to as many people as you like and
keep it for as long as you want, but many ebooks sold now days have
built in limitations that disable access if it is copied too many
times – even if this is you copying it between your own devices,
which means that digital copies have a built in limited lifespan
even though they are sold for nearly as much as physical paper
copies of books.
countries have different needs and this is an argument against
universal copyright law – note that both US and european countries
had no IP law until the 20th century and made huge
profits in the 19th century from copying other peoples
ideas – so why should the modern USA be able to dictate its
business models to third world nations who can benefit from the use
of copyrighted content but could never afford to pay US prices.
US congress is
largely funded by US corporate interests who are committed to old
business models, so are not an appropriate source to be drawing
international IP legislation from. Existing copyright and IP laws
were written long before the internet was conceived of.
The internet is a
giant copying machine, so stopping people copying things online will
achieve nothing but criminalising a progressively larger proportion
of the population. Copyright in its current form is redundant and
needs to be rewritten from the ground up to retain relevance in
todays world – but this could take decades to be accepted by
governments by which time technology will have progressed still
everyone can now be a broadcaster, so should be charged similarly –
i.e. If you share copyrighted content, then you should have to pay
for the amount of people who download it off you, but at a very low
rate like 0.01 cents per download (i.e. equivalent to the ratio
between radio broadcasting license fees and the actual number of
sometimes have other restrictions attached that are not present in
physical copies, for instance not being approved for use in certain
jurisdictions – and users may not find this out until after they
have paid for it with their credit card and received a downloaded
copy. These restrictions are not present in illegal copies, so if a
consumer can get a functional copy, that is not sold in their
country, and for free, what point is there in paying for a
legitimate copy if this copy does not work in the consumers country
agreements that you sign up to at a click when purchasing content
covered by digital rights management software are extremely long and
complex, and the vast majority of consumers do not read or
understand them. If this kind of control is required then it should
be made more understandable to consumers so they know what they are
actually agreeing to when buying the product.
How much do
consumer rights to a product that meets its advertised description
etc, balance with the restrictions imposed by digital rights
management etc – i.e. should a consumer be able to expect that an
ebook or downloaded mp3 will have the same functionality as a
physical book or CD. If not, why not? Even traditional books can be
photocopied, but this has not caused publishers to make books that
decompose after a certain number of readings.
overseas for NZ to change its laws to cover things which are banned
overseas (i.e. in the USA) – problem is that US copyright law has
become the strictest in the world, expanded the length, breadth and
duration of copyright with 99 year terms etc.
interpretation of copyright has criminalised for instance sampling
in hip hop music – and selling the resulting records would
constitute commercial use of the copyrighted content, subject to
severe penalties – even if the track sampled is no longer
copyrighted in NZ, the longer US copyright term may mean it is still
has been proposed as a viable alternative, content can be freely
copied (so long as it is not used commercially in most cases), but
must be attributed to the creator.
Copyright may be
outdated, but it is still important, so moving towards new systems
like creative commons is a better approach than just saying we
should get rid of copyright entirely.
Copyright law is
already unenforceable in the vast majority of cases, especially
where there is no commercial profit on the part of the infringer, so
we need to move to a new model so that content creator's rights can