A response to the latest newsletter from APRA
(crossposted from CreativeFreedom.org.nz)
Today APRA sent out a newsletter to their members with a number of misrepresentations about the Creative Freedom Foundation, about UK artists, and about Copyright law in New Zealand.
APRA writes,
This is why we have been in discussions with the Government, asking them to appoint an independent adjudicator or ombudsman who can rule on any future disputes.
Does this mean that APRA deny supporting a proposal saying that copyright holders should judge disputes? (yes, the accuser becomes the judge!)
We are glad that APRA have now recognised the need for trained experts in data forensics and copyright law to judge disputes. These are the practical necessities of enforcing online copyright disputes and yet you will not find them in Section 92A or in the Policy/Code that they talk about.
Songwriters deserve to be recompensed for their music and for the profits made by the big ISPs like Telecom, Telstra and Vodafone who play a role in illegal file-sharing.
They “play a role” in the same way the post office should take legal responsibility for judging copyright infringement of letters they post, or the phone company should for people who use their service to sing Happy Birthday to their friends.
Internet Providers –under the laws new definition that includes businesses, libraries, schools, universities– are not trained in data forensics and copyright law which are the practical requirements of fairly enforcing S92A. Expecting judgment from these so-called “ISPs” while threatening them with secondary copyright infringement will result in unfair decisions.
We do need a trained independent arbitrator and we have been strongly advocating this as part of an alternative. You can read more about this alternative half-way down on the What About Us? page.
The other event is the emergence in Britain of a group of high profile songwriters standing up for the rights of creators against ISPs and those who think music should be free. The Featured Artists Coalition includes artists like Radiohead, Annie Lennox, Robbie Williams, Billy Bragg, Soul II Soul etc.* The website is: http://www.featuredartistscoalition.com/
The Featured Artists Coalition also say that “[The] record industry in Britain is still going down the road of criminalising our audience for downloading illegal MP3s,” and “If we follow the music industry down that road, we will be doing nothing more than being part of a protectionist effort. It’s like trying to put toothpaste back in the tube.”
They do seem to have opinions about whether it’s in their interests to criminalize their fans who infringe their copyright. In our single story about the Featured Artists Coalition we the CFF clearly state that “It isn’t quite our stance on it but it’s great to see artists speaking up for where they see the industry going”.
If APRAs point is that artists half way around the world think something different to the CFF then, well, good point APRA?
(UPDATE March 18: in earlier versions of this article I was under the mistaken impression that APRAs newsletter was saying that the FAC wanted things to be free. This is wrong and I retract that. I have modified the above text to respond to APRAs bizarre assertion that the FAC support S92A. Thanks!)
The recently-born Creative Freedom Foundation has been vocal about the code of practice. While their slogan “no guilt by accusation” has received support, the question needs to be asked: who wouldn’t agree to that proposition? A visit to their website suggests a slightly different agenda: http://creativefreedom.org.nz/
Here you’ll see how the Foundation denies the validity of the term “Intellectual Property”, calling it “a misnomer”. They then challenge your legal ownership of your music, stating that any song you create is not a genuine property right. According to the CFF website, your copyright is more like “a temporary monopoly”.
This is complete misrepresentation of our approach and, infact, the law. Of course artists own the music, books, art, etc that they make. However copyright lawyers typically don’t use the term “intellectual property” except when making high-level generalisations because it’s a confusing term… it’s an umbrella term that mixes up copyright law, patent law, and trademark law which are all quite different things.
The main point in the page about Copyright is that, for example, Charles Dickens doesn’t have copyright over his work because he’s been dead for eons and — not to get too morbid here — but copyright typically exists for 50 years after the artists death. Patents last only for 20 years, regardless of whether the inventor is dead or alive. Trademarks last forever.
And yet all of these things are called Intellectual Property.
If you build a wooden chair your rights to that chair don’t expire, ever. But all around the world copyright is different. For really, really, really, old copyrighted stuff people can use public domain works like Dickens because the law says that copyright lasts for a certain amount of time, so artists get copyright over their stuff for their life + 50 years.
(Shakespeare is possibly a good example too, although his works were done before Copyright they do show the value of allowing people to build upon works as, for example, The Maori Merchant of Venice play did)
So the page that APRA is referring to (and I encourage you to read it) is about copyright, not Intellectual Property (which as an umbrella term includes other things, like Patents and Trademarks) and the webpage is just about how copyright- all around the world – really is.
The language on the CFF site is similar to the EFF – the “Electronic Frontier Foundation” who are challenging songwriters’ rights in Britain.
Wow… so does this now mean that APRA are not just pushing for Guilt Upon Accusation but also Guilt by Association? 
Ant Healey … this is an open letter to you. If you’re reading this you will see now that as APRA support an independent arbitrator we are not so dissimilar. We should work together on the issues we agree on.
This isn’t a black and white decision — it’s not the old way vs. S92A. Artists now know that there is a more subtle alternative.
An alternative is reasonable fines paid directly to artists and — when there is a dispute — a Copyright Tribunal trained in data forensics and copyright law to pass judgment. This is necessary so that innocent people aren’t punished. A copyright tribunal doesn’t have to result in a criminal record or unreasonable fines.. infact it allows a discretion for the punishment to fit the crime rather than the one-size-fits-all punishment enshrined in S92A.
Internet disconnection is not appropriate for most organisations, businesses, libraries, schools, etc. S92A as a threat will not protect artists, it will do harm to artistic rights and artists.
Please, we can have a meeting to talk about this stuff. Artists have a legitimate grievance about copyright infringement but we need to solve that problem in a way that protects public rights or we will do harm to respect for artistic rights.
There is no need to continue with this approach. It’s not working.
Call me on 021 02963595 to talk this over. I’ll even buy you a coffee.
Best Regards,
Matthew Holloway
