Family Holloway

Clare Curran, Communications and IT Spokesperson for Labour, recently held a meeting in Auckland to discuss broader issues with Copyright in NZ. One purpose of the meeting was to encourage discussion that would feed into a policy on copyright that Labour are developing.

Many key stakeholders involved in the current Copyright debate in NZ attended, and CFF were among them. We found it to be a very positive experience with some surprising common ground. Participants were respectful and a general consensus was reached that technology is radically shifting the way people engage with media. Business models need to be updated to keep up with the change, but education and awareness around respecting the rights of copyright owners is also important.

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.

All in all, we found Curran’s comprehensive grasping of the key issues to be encouraging and greatly look forward to seeing her further progress. Due processes worthy of respect from the public, and Fair Use are essential to New Zealand’s future creative sector and it was great to hear these issues given the time they deserve.

Curran’s response to the meeting is here and her longer post about Copyright issues is here .

Tom Pullar-Strecker in Stuff.co.nz reports that “A working group of copyright experts convened by the Economic Development Ministry is expected to release its recommendations today or tomorrow on how to replace Section 92a of the Copyright Act, which was scrapped in March after a wave of protests. Sources say an independent arbiter will be empowered to rule on disputes. That may be the Copyright Tribunal, which would require new powers and legal protections”. (Please note that the quote from CFF co-founder Bronwyn Holloway-Smith about telephones seems to be slightly smudged; it was intended to compare the internet to necessary infrastructure like phones, electricity, the post service). In the s92A review process it seems to point to internet termination as a form of punishment where fines would be more appropriate and could compensate artists. Interner termination harms many people for the actions of one.

One of the key issues with s92A was its potential to punish innocent people for the actions of others the s92A review expresses a preference for disconnection, saying that a “guiding principle” of the review is for the “process leading to account termination” to be clear. Fines would be much more appropriate.

There are many alternatives to disconnection, for example royalties or fines. Fines are more targeted than disconnection – punishing the guilty person, but not innocent people who happen to share the connection, and obviously this should be of concern to anyone with a shared internet connection. For artists, royalties or fines have the potential to include payment for copyright infringement, whereas indirect punishments that harm innocent people will simply reflect badly on artists.

Due to New Zealand’s geograpical 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.

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In our previous story about Should-A.com’s parody of the referendum question we prophetically said “The United States has parody and satire protection, but New Zealand doesn’t [...] I can’t imagine the Electoral Office taking action over this but it’s worth remembering that free speech involving remix can be effectively censored through legal enforcement of copyright and trademarks.” …unfortunately our imagination wasn’t good enough and the Electoral Enrolment Centre have sent a copyright infringement / takedown notice to Should-A.com about misuse of the “orange elector character”.

The creator of should-a.com, Dylan Reeve, says

I started the site as a way to critisise, even ridicule, a political process that I think has been rendered meaningless by a leading and poorly-formed question. While I personally don’t agree with the opinion of the referendum’s initiators I don’t have a problem with the process, but the way they’ve carried it out makes a mockery of it.

The Electoral Enrolment Centre are likely concerned about the public being confused about whether it’s an official site and therefore interested in protecting their brand and public integrity in the democratic process.

Commentary about the referendum question has been widespread with most reaching the conclusion that the referendum results can’t be clearly interpreted. A voter could be for or against the question but that doesn’t necessarily mean they’ve got the same opinion about the law as it stands. As reported Citizen Initiated Referendums have a history of bias or imprecise wording. The should-a.com website has been used by people to talk about tax wastage , french rugby players , the cost of education , international relations , thoughtful orange men , and basic principles of humour .

While Should-A.com is political speech it also remixes copyrighted material without permission. In some cases copyright or trademark infringement may involve quoting other material (text, images, video) and in the United States they recognise this as a protected Fair Use for commentary such as parody and satire. In New Zealand, however, we have no such protection.

The http://should-a.com/ site is non-commercial and it always displayed the text “This site is intended for the purposes of amusement. Any and all trademarks remain the property of their owners.” however this clarification doesn’t seem to comply with the Election website licensing terms which are described as

You are free to use, store, copy and reproduce Crown Copyright content from this website for non-commercial purposes as long as you acknowledge this website as the source and include the document URL and its “last updated” date in your citation.
[...]
No commercial use may be made of the contents of this website without the written permission of the authoring electoral agency.

To make matters more complex that is just one interpretation of Crown Copyright and there are others. Crown Copyright in New Zealand is based on archaic legalese that lawyers regularly argue over. Because of this uncertainty around Crown Copyright there have been recent moves within government to consider migrating content to the public domain or a Creative Commons Public Domain license .

Could should-a.com have done it without remixing the imagery of the referendum? Sure, but that’s not as effective a method of communication as turning the media message against itself.

Dylan Reeve says it’s a difficult decision,

At this stage it’s an awkward situation for me – because I actually really want to support the referendum process… I want as many people as possible to take part, and to really move beyond the emotive question and look at the facts of the issue. Early on when I’d thought about this I’d actually considered approaching Elections NZ and offering to display a banner for enrolment, but wrote it off.

So, where does this leave Should-A.com and the people using it to express themselves through remix of copyrighted Electoral Enrolment Centre material? In a legal quagmire of outdated Crown Copyright, Bill of Rights issues competing with copying rights, and the natural desire for the Electoral Enrolment Centre to ensure that the public aren’t confused around what’s official and what’s not.

Ugh.

Techdirt has a story on Radiohead’s manager, Brian Message, who is about to launch an record label called Polyphonic where musicians retain their copyright and earn 50% of profits. Techdirt says, “We’ve pointed out how incredibly ridiculous the old structure of the recording industry was, where artists would hand over pretty much all of their rights to the label. It’s amazing that this sort of indentured servitude model has survived as long as it has. After all, if you look at other parallels — such as venture capitalists and startups, the VCs don’t end up totally owning startups to the same extent as labels. Of course, this was really a function of the limitations inherent in the industry: the very limited ability to promote and distribute music in the past without a major record label behind you. With those barriers falling away, we’re seeing much more reasonable models pop up. I still believe there’s a big place for record labels, but it no longer needs to be a massive record label where you hand over all your rights.

(crossposted from CreativeFreedom.org.nz)

France voted against internet termination based on accusations, then for, then against before finally throwing the law out on constitutional grounds. Now Techdirt reports that French president Sarkozy is trying to resurrect the law and the whole “judge must decide” issue … “it creates a special “fast track” for such cases, whereby a judge would be given a grand total of five minutes to decide such cases. Yes, you see, free society (which Sarkozy insists he’s defending) apparently doesn’t involve giving a judge ample time to consider whether or not it makes sense to completely cut someone off from the internet” Sarkozy himself was recently caught violating copyright where he initially offered $1 compensation to the artist.

Dylan Reeve’s Should-A.com launched last week as a comment on the upcoming referendum and its particular choice of question. As the site reads “The referendum in itself is fine, it is part of the democratic process in New Zealand. However the wording they chose makes a mockery of the process. New Zealanders are asked to vote on the question: Should a smack as part of good parental correction be a criminal offence in New Zealand? What a loaded question! The obvious bias that that the smack was “good” and not “bad” made it ripe for parody and the site allows people to remix their own referendum questions into a poster to share with friends. Although this is public commentary we don’t have Parody And Satire protection within New Zealand and so this unlicensed remix of copyrighted images and trademarks are only allowed to exist at the discretion of the owner. I can’t imagine the Electoral Office taking action over this but it’s worth remembering that free speech involving remix can be effectively censored through legal enforcement of copyright and trademarks.