Family Holloway

(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

(crossposted from CreativeFreedom.org.nz)

FOR IMMEDIATE RELEASE: The Creative Freedom Foundation launch their interactive video series What About Us today. The series will feature YouTube video statements by New Zealand artists and others who are not represented in the private sector decision-making process that will determine whether the controversial Guilt Upon Accusation law Section 92A comes into effect.

The law is due to come into force on March 27th if two non-governmental groups – the Telecommunications Carriers’ Forum (TCF) and selected Rights Holders – agree on a policy. One of the largest members of the TCF, TelstraClear, have recently withdrawn from the negotiations protesting the law as unworkable.

CFF Director Bronwyn Holloway-Smith says “We’ve blacked out our websites against this law and now we’re looking straight at the camera, introducing the people that this law will affect but who are not represented in the decision-making process.”

What About Us launches with videos featuring Yulia, Glyn MacLean, Luke Buda (Phoenix Foundation), Peter Dunne (UnitedFuture), Luke Rowell (Disasteradio) and Imon Star (Olmecha Supreme). The videos are available to view on www.CreativeFreedom.org.nz alongside statements from other artists, business owners and educators. Instructions are also available for those who want to join in and contribute statements to the series via YouTube.

Holloway-Smith says “The delay to S92A didn’t fix its fundamental problems and we’ve found that many people have genuine concerns and questions about the law that have not been addressed in the new situation. They see that the law will affect them in their daily lives, but the only interests that are being looked after in the negotiations are those of the TCF and selected Rights Holders. So, as a result we’re giving everyone concerned with this law the opportunity to speak up and have their say through the simplicity of YouTube videos.”

The Creative Freedom Foundation say that S92A cannot be implemented because it’s incomplete, unfair as written, excessive, and unsubtle – they call for it to be repealed and replaced with a common-sense alternative. Suggestions for alternatives advocated by the CFF are to reduce ISP scope to those capable of enforcement, to change from a ‘notice-and-takedown’ model to the internationally popular ‘notice-and-notice’ model, and to establish an affordable independent copyright tribunal for settling disputes.

“Like Prime Minister John Key – we recognise that the internet can’t be a lawless ‘wild west’ which is why we need justice for copyright holders, justice for the accused, and representation in the decision making process” says Holloway-Smith.

ENDS

(crossposted from CreativeFreedom.org.nz)

Kiwiblog reports that ACT leader Rodney Hide has spoken at their conference about Section 92A: “It’s one of the stupidest new laws imposed by Labour and I am taking steps to get rid of it, [...] It should be repealed, it is fundamentally flawed because it breaches the principles of natural justice. It makes people guilty without trial and that is wrong.”

(crossposted from CreativeFreedom.org.nz)

The Independent (UK) reports “Musicians including Robbie Williams, Annie Lennox, Billy Bragg, Blur’s David Rowntree and Radiohead’s Ed O’Brien said last night that the public should not be prosecuted for downloading illegal music from the internet.” Billy Bragg said “Artists should own their own rights and they should decide when their music should be used for free, or when they should have payment. [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.” Peter Gabriel sent a message of support, and “David Gray, Fran Healy from Travis, Pink Floyd’s Nick Mason and Mick Jones from The Clash turned up in support.” Wow. This is big news. It isn’t quite our stance on it but it’s great to see artists speaking up for where they see the industry going

(crossposted from CreativeFreedom.org.nz)

David Farrar of Kiwiblog analyses the TCF submissions including a response from former Chair of the Copyright Tribunal Judge Harvey “section 92A is unnecessary and gives rise to a situation where a person may be deprived of rights under a contract without proper legal process.”, from Google “in Google’s experience, there are serious issues regarding the improper use and inaccuracy of copyright notices by rights holders”, and others such as the Society of Authors “Whilst we strongly support the need for measures to control repeat copyright infringement we feel that this clause is not ideal – it has been hastily written and we recommend the need for further discussion.”

Chris Barton in the Herald comments “[RIANZ] is disingenuous when he says: “Internet service providers are in a unique position to help us protect creative content online.” What he really means is: “We want internet providers to be our vigilantes – cop, judge, jury and executioner – to hunt down illegal music downloaders and cut off their internet. Isn’t that job of the police and the courts? And what about due process – don’t people accused of wrongdoing deserve a fair hearing?”.

This morning after yesterdays announcement that Telstraclear have rejected the code a spokesman for Hon Simon Power has said “We’re advised that the negotiations are going along in a reasonably constructive way so we’re hopeful that could still happen, even without TelstraClear”.

TelstraClear said they would “stick [their] neck out” by being first to reject the code, because a code can’t fix this law.

Hopefully other TCF members will soon follow TelstraClears lead.

(crossposted from CreativeFreedom.org.nz)

In the CFF response to RIANZ we say that artists want reasonable solutions to this bad copyright law and that most people aren’t represented in the decision making process. Update: Hot off the press, TelstraClear have rejected the TCF code. I’m almost hesitant to write this but the article seems to say that the TCF code won’t be ready by March 27th and based on what the government have said this may mean that S92A has been stopped. Don’t get too excited yet however, we’ll need confirmation of this.

An anonymous irishman writes about an uncoming lecture in Wellington: “Since intellectual property law’s beginning competing interests have stretched the law. Barbie now has more protection against rip-offs than Renoir could have imagined. A mishmash of justifications, including encouraging creativity and developing culture, has shaped the law. Does protection unduly restrict other cultural values?” At 6pm on the 10th of March at the Hunter Council Chamber at Victoria University Wellington.

Email RSVPs to rsvp@vuw.ac.nz with ‘Frankel’ as the subject line.

(crossposted from CreativeFreedom.org.nz)

NZLawyer Magazine have a thoughtful article: “A serious implication of the termination policy obligation in section 92A is that it ultimately requires ISPs to police copyright infringement and enforce rights on behalf of copyright holders by cutting off users’ Internet accounts.[...] Section 92A effectively imposes the work of a court on the shoulders of a commercial – or in many cases, private – entity. ISPs will be required to both make a judgement and carry out the sentence.”

ComputerWorld Magazine covers the story that “a local website has removed recordings of the Conan novels under the threat of legal action from the US, despite the material being in the public domain in New Zealand.”. The site was BrokenSea.com.

(crossposted from CreativeFreedom.org.nz)

From 3 News an interview with Andrew Dubber from NewMusicStrategies.com: “If there is one man well qualified to raise his voice above the rabble in the recent debate on New Zealand’s proposed “guilt upon accusation” copyright laws – it is Andrew Dubber. His personal blog says he is a “lecturer, author, speaker, broadcaster, music enthusiast, and haver-of-ideas”, he is a New Zealander living in the UK and he is also one of the foremost thinkers on the way in which music and its creation is changing in the twenty-first century.” Andrew Dubber was also interviewed recently by Kim Hill (MP3)

Unrelated: Creative Freedom and Copyright billboards.