Brett Gaylor’s recent documentary RiP: A remix manifesto is screening in this year’s New Zealand International Film Festival. From the NZFF website: “Brett Gaylor has made an admiring portrait of his favourite recording artist Girl Talk (Greg Gillis), but also raises some fascinating questions about sampling culture and copyright laws. Audio bricoleur Gillis is a fearless musical magpie, with a whizz-bang knack for snatching the best snippets of the daggiest songs (think Gloria Estefan, Journey and Whitesnake) and recontextualising them into sparkling new tracks to create a bastard pop known as mashup. While these spunky sound collages are thrillingly inventive, copyright laws determine that tracks made from pilfered works (Gillis crams uncleared samples from 21 songs into a three-minute track) are utterly illegal. As the NY Times Magazine stated, Gillis is ‘a lawsuit waiting to happen’. Joyously celebrating remix culture, Gaylor and Gillis articulately argue that the line between inspiration and infringement for a media-literate generation is being increasingly blurred, and that reshaping existing creative works for ‘fair use’ should be free from copyright restriction.” — KD.

The film is screening in Wellington this week (23, 24, 27 July) and in Christchurch, Dunedin, and Palmerston North in August. Alternatively you can watch the film in chapters online, buy and download the film (legally!) from iTunes, or if you’re in the US, from the official film website www.ripremix.com.

Jame Boyle at The Public Domain analyses transcripts from 1909 with some interesting revelations about the recording industry “The thing that Sousa and the music publishers were most upset about was the fact that copyright covered printing and public performance, but did not cover the mechanical reproduction [...] Their goal was to get a new provision (section g) which would give composers (and thus publishers) the right to charge a royalty for these sound recordings. In strong opposition was the recording industry — which violently denied that the copyright holders should gain any share of the new market that (as they saw it) had been created out of thin air by technological innovation. To give copyright holders a veto over technology, they argued, would be fatal to the progress the Copyright Clause was designed to promote. As Larry Lessig points out in Free Culture there is no small irony involved here, since this is the opposite position that the recording industry takes today (having secured their legal rights) when they face the new technologies of the Net.”

For those wanting to hear more from James Boyle try this podcast (MP3)

(crossposted from CreativeFreedom.org.nz)

In a story dripping with irony, the New York Times reports that Amazon Kindle has unpublished the Orwell novels 1984 and Animal Farm overnight: “This morning, hundreds of Amazon Kindle owners awoke to discover that books by a certain famous author had mysteriously disappeared from their e-book readers. These were books that they had bought and paid for—thought they owned. But no, apparently the publisher changed its mind about offering an electronic edition, and apparently Amazon, whose business lives and dies by publisher happiness, caved. It electronically deleted all books by this author from people’s Kindles and credited their accounts for the price.” Of course with government-protected DRM you never really own anything you buy and it can be revoked at any time. Orwell died in 1950. Under British copyright his works fall into the public domain in 2020 (life plus 70 years). NZ Copyright Term is life plus 50 years rendering his works already in the public domain here. With the obvious parallels with Orwellian visions of the future one must wonder: what would Orwell make of all this?

SEE ALSO: this comic, ‘amusing ourselves to death’ by Stuart McMillen about the difference between Huxley and Orwell.

Mashable reports that “A survey conducted on over 1000 music fans, by media and tech research agency The Leading Question, has shown that file sharing among teens in the UK has fallen dramatically. [...] But here’s another nugget, perhaps the most important number from the report: There are now more UK music fans regularly buying single track downloads (19%) than file-sharing single tracks (17%) every month. I’ve long held the belief that the rise of piracy is not only due to the price of pirated content being zero. It’s also due to availability and quality of the product (the entertainment industry has tainted the quality of their products by introducing DRM, and consumers still feel the scars).” With the Telecom XT music store’s DRM that prevents copying your legally bought music to your iPod there are still some aspects of the music industry not responding to consumer demand. Of course we’re now 15 years into the mainstream internet and we’ve yet to get DRM-free movies in New Zealand, despite services like iTunes showing impressive uptake in the face of free, illegal alternatives.

Here we go again… Stuff.co.nz reports that the new proposal is causing concern .. InternetNZ say “Nobody condones copyright abuse, but the termination of a household or business internet account is simply out of proportion to the alleged offence. Brett O’Riley warns that the regime could penalise education organisations, where it is difficult to identify the copyright infringer. Unfortunately APRA (who incidentally had their best year of profits ever last year) are still doing artists no favours by making absurd statements. Ant Healey claims that “Without the content industries, the internet would be empty.”. Well he’s completely right.. if you just ignore email, the largest encyclopedia humans have ever made, millions of legal software downloads, the 90% of YouTube content that is not infringing, Iranian activists and political speech, 60 million legal photos and millions of legal songs and videos for download and businesses, banks, health records, farmers, and others all using the internet to communicate.

At the recent Auckland meeting some time was spent discussing the questionable and unproven “statistics” that have been given by rights holders as an attempt to paint illegal downloading as a major revenue threat.

It was even admitted by one party that recent claims of internet traffic being significantly reduced around the time of the Internet Blackout, and subsequent increases following the suspension of s92A, were entirely fabricated.

With maliciously fabricated claims and fake statistics being thrown around it makes sense to be skeptical. We challenge journalists to ask where these statistics come from and particularly whether they are industry funded studies.

As the old saying goes: extraordinary claims demand extraordinary evidence.

The Big Idea, “home of NZ’s creative community”, have today launched a Copyright Forum to discuss the balance between public and private rights. Started by Cathy Aronson they’re initially they’re discussing the Section 92A review.

Yesterday One News reporter Heather du Plessis-Allan interviewed Bronwyn Holloway-Smith about the s92A revamp and this morning Helen Baxter from Mohawk Media talked about the proposal as a significant improvement, however internet termination isn’t something that artists want done in their name.

For immediate release

The Creative Freedom Foundation welcome the Ministry of Economic Development’s Section 92A Review Policy Proposal Document, released for public comment yesterday.

CFF Director, Bronwyn Holloway-Smith states ”It’s wonderful that Hon. Simon Power, the Working Group, and MED are ensuring due process around copyright infringement allegations. This proposal is certainly a considerable improvement on its predecessor, and it’s great to see an independent tribunal and targeted fines as part of the process.”

“However, there are still some concerns for us. It’s unfortunate to see NZ not following international trends by holding on to internet termination as a punishment. As artists, we don’t want people’s internet taken away to protect our copyright. This is too severe a punishment, and many consider it to be a breach of human rights.”

“Internet termination would affect entire businesses, government departments, farms & families and anyone else with a shared internet connection due to the actions of one guilty person or even a virus infected computer. Further, internet access is hugely important in today’s society, and a lot of basic services including banking, health records, education and social activities are increasingly delivered online.”

“The definition of an Internet Service Provider has also not been addressed, meaning that any shared connection may be considered an ISP. It is also likely that there will be considerable business compliance costs with estimates starting at $1500 per business to install to tracking hardware.”

“There also doesn’t seem to be any penalty for false accusations.”

“While there are a few creases to iron out, we are optimistic that the government is on the right track to creating a great solution for NZ that supports and protects both creative and public rights.”

ENDS

SEE ALSO Creative Freedom Foundation s92A proposal review

MED have announced a Section 92A Review Policy Proposal Document for public comment. The document has only just been released and we’re working through it but it appears to be significantly better, affording due process and for independent experts to decide – the Copyright Tribunal. As anticipated however there is still internet termination involved which is a completely inappropriate sanction for shared internet connections that will inevitably punish many people for the actions of one. Targeted fines would be more appropriate than the scatter-shot approach of internet termination and they allow compensation to artists.

Firstly, congratulations to Hon. Simon Power, the Working Group, and MED for ensuring due process around copyright infringement allegations.

MED summarise the process as follows (RH = Copyright Holder)

The Proposed Approach: Summary

Phase 1- First Infringement and Cease and Desist Notice Procedure

Where a RH considers on reasonable grounds that there has been online copyright infringement of one or more of its works, RHs may invoke the section s92A procedure by sending a first infringement notice to an ISP. The notice will contain sufficient details to allow the ISP to identify the subscriber concerned. This notice must then be forwarded by the ISP to the subscriber. If there is further copyright infringement by that subscriber, a RH may send, via the ISP, a cease and desist notice. The subscriber will have an opportunity to reply to either notice by way of a response notice directly to the RH with their name and contact details attached. Upon receiving a response notice, a RH will be required to accept or reject it and inform the subscriber accordingly.

This raises two significant questions,
1. Who’s an ISP? Is it the conventional definition or the existing broad definition that covers practically anyone with a shared internet connection or website?

2. Who’s a subscriber? Can an organisation’s internet be terminated because of misuse by a rogue employee, a child, or a virus infected computer?

MED continues…

Phase 2 – Obtain Copyright Tribunal Order

Where a RH considers on reasonable grounds that there has been further (repeat) copyright infringement by a particular subscriber after a cease and desist notice has been sent, and the subscriber concerned has been provided with an opportunity to respond by way of a response notice, a RH may apply to the Copyright Tribunal to obtain an order requiring the ISP to provide the name and contact details of the alleged copyright infringer (the subscriber).

Currently people can apply to a court order for an ISP to reveal account holder details. This “Phase 2″ may be comparable to this or it may be a privacy issue that could be abused. It’s too early to say right now.

MED continues…

Phase 3 – Copyright Tribunal

A RH may then register an infringement complaint with the Copyright Tribunal which will ensure that the infringement complaint complies with requirements in statute/regulation. A RH may then notify the subscriber that an allegation of repeat copyright infringement has been lodged against them. The subscriber will have an opportunity to respond to the allegation and to elect to proceed to mediation. The Copyright Tribunal will be convened unless agreed otherwise. The Copyright Tribunal, in addition to available relief by way of damages, injunctions, account of profits or otherwise, may consider ordering a subscriber to pay a fine or an ISP to terminate the subscriber’s internet account.

Many New Zealanders are against internet termination and it goes against trends in the European Union .

The UK have said it well “We currently have no intention of legislating to terminate the accounts of persistent copyright offenders [...] We don’t consider this to be a proportionate response, especially given the importance of internet access in today’s society, where many services including banking, health and education are increasingly delivered online. Disconnection is even less fair in situations where a number of people in a household may share one broadband account.”

It’s a pity that the draft doesn’t appreciate this point.

Due to New Zealand’s geographical isolation the internet is a vital tool for connecting to the rest of the world, and is also becoming more pervasive with vital services moving online such as parts of government, health care (records, scheduling) and social interaction tools (newspapers, phone, email, social networks). Disconnection may hinder people’s ability to pay bills, operate their business or do their job, access banking, education, insurance, etc. Due to this the internet is already a necessary service like other utilities such as the phone and postal systems. With internet use showing no signs of slowing, in future years disconnection will be seen as a shortsighted and increasingly unfair penalty.

For artists, fines have the potential to include compensation for copyright infringement, whereas broad and indirect punishments that harm innocent people will simply reflect badly on artists.

It’s likely that there will be significant business compliance costs with termination. ISPANZ have estimate that 90% of NZ Businesses use network devices that are currently incapable of tracking and we see no coverage of this in the draft (although it’s unsure whether we would expect at this early stage).

Public comments end on Friday 7 August 2009.

See also

Chris Keall at the NBR has some analysis.
ActivityPress coverage
Public Address.net comments on the MED s92A draft
Kiwiblog reviews the 3 phased approach
ComputerWorld magazine has quotes from various IT groups

UPDATE:

Labour’s Clare Currans response.

As an update to our earlier story on should-a.com and the referendum question we’re very pleased to see that Dylan Reeve from Should-A.com and the Electoral Enrolment Centre have reached agreement on the use of Crown Copyright images. Good on the EEC for not taking a heavy handed approach towards this kind of free speech. As Kiwiblog comments , it highlights the need for good copyright that “protects fair use and free speech by allowing satire and parody.” Update (later that day): PublicAddress.net have a thoughtful story on this