NetHui 2011 - Session 2 - intellectual property and the internet

posted 28 Jun 2011, 17:34 by James Williamson

Intellectual property – toll gates on the information highway


  • 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 rights holders.

  • 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.

  • No clear 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.

  • DMCA takedown 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.

  • International 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.

  • Distinction needs 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.

  • More discussion 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.

  • Different 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 further.

  • Broadcast model, 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 radio listeners).

  • Digital copies 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 of residence?

  • The licensing 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.

  • Pressure from 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.

  • This 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 copyrighted there.

  • Creative commons 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 be protected.

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