The Guardian reports that the major labels are designing a new download format for albums. Single-track downloads are the popular form of online music distribution – allowing people to pick and choose songs and to avoid any filler tracks which has meant reduced profits for artists. Infact many people say that single track downloads are responsible for the downturn in profits more so than file sharing. This new digital album allows album artwork and lyrics (but then so do MP3s) and the only new features in these digital albums are videos and online links. Historically the term “album” came about because it resembled a photo album, and the lengths of LPs or CDs were mostly arbitrary (CDs were 74 minutes in order to fit Beethoven’s 9th Symphony, for example). While I prefer listening to albums I can’t imagine many people choosing them unless the album price was significantly cheaper.

(crossposted from CreativeFreedom.org.nz)

Last friday was the last day for this round of submissions on s92A and CFF submitted this document (PDF) (OpenDocument) to the Ministry of Economic Development. In the days leading up to the deadline some organisations were yet again calling for accusers to judge the accused and for the draconian punishment of internet termination. These days a large portion of interactions with copyrighted material involves what people do in their homes on their private internet connections, and controlling what people do on their private internet connections is perhaps comparable to controlling what people do in their bedrooms. You haven’t got a hope of controlling that unless you win the hearts and minds of New Zealanders with a publicly respectable process with proportionate sanctions [...] “While lowering the barriers to justice is a noble goal it’s ultimately the industries themselves that must evolve to the internet – to satisfy people’s demand for content. Artists are already using the internet effectively but industries have been slow to adapt. DRM was the result of a scared industry’s reaction to digital distribution, and government protection for DRM is now inhibiting the uptake of interoperable legal services by preventing the copying of media between iPods, cellphones, and other digital devices. A business model based around regional release dates (or cinema and DVD release dates) makes little less sense in the modern world and we believe that such unworkable models should not be propped up by government intervention.”

Download CFF submission as PDF or OpenDocument

Our cover letter is as follows…

We are encouraged to see an independent tribunal and targeted royalty payments or fines as part of the policy proposal document. These days a large portion of interactions with copyrighted material involves what people do in their homes on their internet connections, and controlling what people do on their private internet connections is perhaps comparable to controlling what people do in their bedrooms. In other words, it’s essential to win the hearts and minds of New Zealanders with a publicly respectable process that has proportionate sanctions, and we believe the suggested tribunal is a step in the right direction.

It is, however, unfortunate to see NZ not following international trends by suggesting internet termination as a form of punishment. As artists, we don’t want people’s internet taken away to protect our copyright, this is too severe a punishment. The internet is part of modern free speech, and with essential services moving online termination may hinder people’s ability to pay bills, operate their business or do their job, access banking, news, health care records, education, and talk to friends and family.

In future years the internet will continue to become more pervasive and internet termination will be seen as increasingly unfair, and comparable to cutting off someone’s electricity, phone or post service. To avoid revisiting a law that will be outdated in the near future it makes sense to look ahead and to exclude termination.

While lowering the barriers to justice is a noble goal it’s ultimately the industries themselves that must evolve to the internet – to satisfy people’s demand for content. Artists are already using the internet effectively but industries have been slow to adapt. DRM was the result of a scared industry’s reaction to digital distribution, and government protection for DRM is now inhibiting the uptake of interoperable legal services by preventing the copying of media between iPods, cellphones, and other digital devices. A business model based around regional release dates (or cinema and DVD release dates) makes little less sense in the modern world and we believe that such unworkable models should not be propped up by government intervention.

The internet isn’t going away and a refusal to sell movies, TV, and music online due is not meeting consumer demand. These industries must sell their products online and DRM-­free.

Bronwyn Holloway-Smith
Director, Creative Freedom Foundation

The main issues were summarised as…

1. Clarification of Terms: A clarification of some terms is needed, particularly that of “ISP”.
2. Overlap with section 92C: We recommend that any s92C disputes are able to be taken to the Copyright Tribunal, and that the s92A and s92C provisions be properly harmonised.
3. Termination an Inappropriate Penalty: Royalty payments or fines are an appropriate sanction, however the non­targeted punishment of internet termination is disproportionate and will be seen as increasingly unfair as essential services continue to migrate to the internet.
4. Courts for Large Scale Infringement: the proposal suggests that the Copyright Tribunal will have exclusive jurisdiction over s92A matters however a more thorough process may be essential when dealing in large scale infringement cases and their considerable sanctions.
5 Funding of Copyright Tribunal: We would like to see more guidance around how the tribunal will be funded.
6. Process for Unreachable Subscriber: Cases may arise whereby a subscriber is unable to be contacted (eg. internet cafe, or the majority of organisations that can’t identify individuals).
7. Process for shared connections: The obligations upon organisations with shared internet connections and the associated business compliance costs to identify subscribers should be investigated.

The NZ Herald reports on the growing extremism from music industry representatives pushing for DRM which makes legally purchased music expire, and prevents copying of legally purchased music to iPods, cellphones, and other digital devices… “Someone really does need to tell this guy that the market doesn’t want DRM, online store providers don’t want it and the sooner the MPAA, RIAA and their international subsidiaries realise this the better we will all be using the energies otherwise wasted in debating it to focus real issues such as global warming, or why toast always lands buttered side down on the kitchen floor.” DRM for music and movies is a failed experiment that doesn’t prevent copying (name one song or movie that didn’t appear online within five minutes) but it does inhibit the legitimate use of legally purchased songs and movies. In February 2009 an interview with a DRM provider admitted that that people may have to repurchase DRM music after 6 months , and “As DRM authentication servers would be in turn shut down, the tracks would be rendered unplayable”. With this kind of behaviour from movie and recording companies it’s unfortunate but perhaps not surprising that customers are turning to illegal workarounds or to illegal downloads where, ironically, they’re not treated as criminals. Music that self-destructs in 6 months is exactly the kind of thing that is harming uptake of legal digital music services.

TVNZ’s Close Up last night interviewed CFF’s Bronwyn Holloway-Smith about the section 92A review along with Telstraclear’s Matthew Bolland and APRA’s Arthur Baysting. On the show APRA said they were against termination (!) but that they favoured slowing down connections. TelstraClear were rightly talking about the wider issue of the business model needing to change, that there are unsatisfied customers that still can’t even buy movies when they want it. Of note was the new study of New Zealanders opinions on accessing and copying content. The study cover legal and illegal copying, and here are a  few choice quotes,

Quotes from people surveyed

“I know that there are things that will never be available in NZ through stores, therefore I look for that content elsewhere. An example of this is British content which will never be shown on NZ television. Same kind of thing with obscure music that NZ does not buy through retail. I think there needs to be a massive restructuring and a look at the kinds of things that are available legally and keep in mind that the retail section is so limited here in NZ. “

…

“The record industry needs a major shakeup – the current approach is like trying to stop an avalanche with a stick. I don’t have a solution but whatever it is, the artists will get much closer to their audiences and will get paid, but the record companies and intermediaries will not be necessary and will not survive.”

…

“The creator has for a fixed period of time exclusive ownership to profit on the content, but at some point in the future it is expected that copyright expires and the content enters the public domain. Right now I consider that owners, publishers and middlemen are actively extending their rights beyond what is fair using obnoxious tools like DRM etc….so they are not playing fair, therefore they have abused consumer rights and I lose interest in being fair to them myself.”

…

“In the past, recording companies, publishing companies etc. were all very important to allow artists to reach customers. In today’s world however, we are rapidly finding that artists can very easily find customers independently. I think there is a growing perception that most of the money you pay when you buy an album is not going to go anywhere near the artists, and I think a lot of people resent that, I would count myself among them.”

FOR IMMEDIATE RELEASE The Creative Freedom Foundation, representing over 20,000 New Zealanders including 10,000 artists, encourage the government to continue it’s efforts in fixing the copyright law section 92A. (more inside)

“Earlier this year New Zealand came dangerously close to implementing the harshest, and most draconian of copyright laws anywhere in the world. This law would have seen innocent people punished based on mere accusations” states CFF Director, Bronwyn Holloway-Smith, “No wonder so many people called it the Guilt Upon Accusation law.”

Last month the Ministry of Economic Development released their Policy Proposal Document for public comment, with submissions due this Friday 7th August before 5pm.

“The new MED proposal is a considerable improvement and it makes the sensible decision to empower independent experts to judge the merit of allegations – a practical necessity considering that 30% of NZ copyright lawsuits fail to even prove ownership. You’d hope that justice wouldn’t be controversial but this week has seen NZFACT renew calls for accusers to judge the accused and for the removal of New Zealander’s fundamental right to trial.”

“It’s disappointing to see NZFACT not advocating for publicly respectable copyright law. It’s a shortsighted approach that is doing great harm to public respect for copyright and other artistic rights.” says Bronwyn Holloway-Smith, “the CFF believe that fundamental rights should never be sacrificed due to a lack of patience.”

The MED proposal includes Internet Termination, a form of punishment that has fallen out of favour internationally, with nations in the EU rejecting it entirely.

“Unfortunately however, Internet Termination is still in the MED proposal. This was one of the main concerns of the former s92A and an issue that saw tens of thousands of New Zealanders join our Internet Blackout campaign in protest.”

“The internet is part of modern free speech, and with essential services moving online termination may hinder people’s ability to pay bills, operate their business or do their job, access banking, news, health care records, education, and talk to friends and family.”

“In future years the internet will continue to become more pervasive and internet termination will be seen as increasingly unfair, and comparable to cutting off someone’s electricity, phone or post service. It’s already essential to many New Zealand businesses” says Bronwyn Holloway-Smith, “There are alternatives such as targeted fines which would allow compensation to artists rather than the inventive punishment of termination which has been ruled out in many countries such as the UK.”

“As artists, and copyright owners, we believe that there needs to be greater awareness and respect for artist’s rights, but we don’t want to see the removal of basic justice, or disproportionate punishments like internet termination.”
The CFF urge artists and the wider public alike to have their say. More information can be found in their latest newsletter http://creativefreedom.org.nz/story.html?id=376

ENDS

FACTS AND FIGURES

The UK Government have said: “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.” (source: http://creativefreedom.org.nz/story.html?id=328 )

ABOUT THE CREATIVE FREEDOM FOUNDATION

The Creative Freedom Foundation is a not-for-profit trust representing 20,000 New Zealanders, with 10,000 of those artists including musicians, film makers, visual artists, designers, writers, & performers. Founded in 2008 in response to changes in copyright law and the effect these changes are having on creativity, the economy, and public rights, the Foundation’s primary goals are:
- The education of New Zealand artists about emerging issues within New Zealand that have the potential to influence their collective creativity
- Advocacy to ensure that their views are taken into consideration, and
- The promotion and encouragement of activities that support and build the New Zealand arts community, positive relationships within that community and/or the positive wellbeing of that community.

Through their goals, the CFF seek to influence change in NZ Copyright Law, making it appropriate for the 21st Century.

MEDIA ENQUIRIES

For more information please contact:
Bronwyn Holloway-Smith
Director, Creative Freedom Foundation
cff@holloway.co.nz
(+ 64) 021 107 5747

In this issue,

• s92A Submissions Due This Week;
• Julian Dashper, 1960-2009;
• Stephen Fry’s Eloquent Defence of the Arts against Extremist Copyright;
• UK Music Industry’s Own Economist Says Revenue Up 4.7%;
• NZ Chinese Digital Community Open For Remix;
• Associated Press Buys Snake Oil: DRM for News

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s92A Submissions Due This Week

Last month the Ministry of Economic Development released their Section 92A Review Policy Proposal Document for public comment. Submissions are due at the end of this week: 5pm, Friday 7 August and should be sent to copyrightact@med.govt.nz

This is a quick reminder that submissions on the MED’s s92A Review Policy Policy Proposal Document are due in a couple of days time. We encourage anyone who is concerned with elements of the proposal to make a submission as well. The main issues, as we see it:

1. Supporting the Copyright Tribunal for Due Process: While earlier versions of s92A called on untrained ISPs to determine copyright infringement and amounted to little more than guilt upon accusation the new proposal is significantly better and includes the suggestion of a Copyright Tribunal, affording for due process and for independent experts to decide. We believe the Copyright Tribunal should be strongly supported.

2. Internet Termination a Completely Inappropriate Penalty: Once proven by experts then reasonable fines are an appropriate sanction, however the non-targeted punishment of internet termination is disproportionate and in coming years will be seen as increasingly unfair with more essential services online. 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.” Simply put, internet termination isn’t very futuristic.

3. Scope of an ISP: A clarification of some terms is needed, particularly that of “ISP”. Last years changes saw the definition of an ISP to be practically anyone with a shared connection or website. ISPs now include businesses, schools, libraries, government departments and they may currently face significant risk and business compliance costs. The consultation process could benefit significantly from a clear understanding of the intended scope.

4. Overlap with section 92C: As it was with earlier versions of s92A the proposition in s92C is that an ISP can be an effective judge of copyright infringement, an expedient replacement for due process, and that only guilty people will be accused. We recommend that any s92C disputes are able to be taken to the Copyright Tribunal, and that the s92A and s92C provisions be properly harmonised.

5. Process for Uncontactable Subscribers: Cases may arise whereby an subscriber is unable to be contacted (eg. internet cafe, organisations that can’t target individuals). The consultation process would benefit from guidance around the obligations when a subscriber is uncontactable.

6. Sanctions for Abuse: Penalties for inappropriate use of the system.

Read more analysis at http://creativefreedom.org.nz/story.html?id=347

Julian Dashper, 1960-2009

Alongside many others, the Creative Freedom Foundation is today mourning the loss of Julian Dashper, great New Zealand artist. Reflecting on Dashper, it seemed appropriate to revisit an essay I wrote a few years ago about his work. Dashper was extraordinarily talented and clever, and made a number of marvelously critical works that would not sit out of place with our current discussions around art, ownership, appropriation/remixing, originality, reproduction, and advertising. Read more about Julian here.

Stephen Fry’s Eloquent Defence of the Arts against Extremist Copyright

In this mp3 Stephen Fry discusses the history of creativity and a possible dark future ahead, saying that “It seemed to me very appropriate share with you some questions I have, some deep questions about the way the way the world is going in terms of music but also film and television and the creative arts. Now, I hope I’m not – I hope – going to be too dull, but I’ll obviously be very dull for those of you who don’t want me to talk about this subject so I’d advise you to fondle the thighs of your neighbour as I speak.”

UK Music Industry’s Own Economist Says Revenue Up 4.7%

Zeropaid reports that “Record labels and others in the music industry frequently lament that they can no longer make money, that piracy and illegal file-sharing has all but made their industry extinct, or so they would have you believe. So when Will Page, the Chief Economist for PRS for Music, a UK-based royalty collecting group for music writers, composers, and publishers, publishes a study concluding total music industry revenues are up 4.7% since 2007 it corroborates what many studies have shown, that P2P actually increases music consumption [...] The music industry is growing increasingly diverse as music fans enjoy a wide range of platforms to hear and consume music. Sales of recorded music fell 6% for example, digital was up 50% while physical dropped 10%, but concert ticket sales grew by 13%”

Legal Media Streaming The Future?
And a BBC news report says that “statistically reliable surveys show a continuing desire for music among young people, despite the obvious interests and attractions of gaming and other activities. They also show that teenagers are aware of and able to take advantage of legal services when they are available. [...] behind the shift to licensed music services there is another change that should give the music industry pause: young people seem happy to stream their music, relying on access to the network to ensure they can get the songs they want, when they want it. While my generation was stuck on owning music on vinyl or CD, today’s young listeners seem not even to feel the pressure to have a local copy of the file.”

“This should not surprise us, since the only reason that we all started to use file sharing and other unlicensed ways of getting music was because the services that the record companies provided were unwieldy, expensive, limited and intrusive. They were riddled with absurd and inconvenient copy protection measures like the software that Sony-BMG put on music CDs in 2005, which secretly installed itself on users’ computers”

The reporter is perhaps being too forgiving to Sony after they hacked home computers and left them vulnerable to viruses but it’s a good summary of where music is heading and how people aren’t trying to break the law – it’s just about getting music when and where they want it.

NZ Chinese Digital Community Open For Remix

Chinese Digital Community launched today with historical and contemporary information, articles, images, audio, video, documents all remixable under the Creative Commons. Paul Reynolds says that “from the outset the project wanted to create rich new stores of family and community memory, and then build pathways which would connect these to repositories of public knowledge and heritage sources that linked to, or expanded the reach of the community or family memory.”

In related news is 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.
You can watch the film in chapters online, buy and download the film (legally!) from iTunes.

Associated Press Buys Snake Oil: DRM for News

Associated Press made waves last year with it’s plan to charge $12.50 for 5-25 word quotes from news articles. Now more details about AP’s plans for the web have emerged and it looks like they’re foolishly heading down the route of Digital Restrictions Management. DRM imposes arbitrary restrictions and bypassing DRM is a criminal offense in New Zealand. Not only does DRM fail at its task for fundamental reasons but – like all snake oil – those selling it mislead naive people about its effectiveness. Associated Press have a clear misunderstanding about the technology they’ve chosen (it can’t do what the diagram says) and Arstechnica comments that “You’ll be forgiven if you find it difficult to square the reality of [the technology] with the AP’s pronouncements about it.” and “AP posted a diagram of the system, which only adds to the confusion—your satisfaction with the diagram will be inversely proportional to your knowledge of the technology”. Unfortunately this large organisation may soon push for law changes in New Zealand as it has in other nations.

Earlier this year Scoop had a press release from the World Association of Newspapers about ACAP, the Automated Content Access Protocol which is a DRM-scheme for newspapers.

ACAP builds upon an existing technique while also defining the amount of text that can be quoted, whether to quote or display the entire site in a scrollable box, and even what colour and font to display quotes in (!).

DRM removes legitimate access to copyrighted material that would be allowable under New Zealand’s Fair Dealing provisions, and Arstechnica comments that if AP believe that “hNews” or any technology can do half of the things they believe they’re sadly mistaken. Artstechnica comment,

hNews looks like a nice way to mark up news, to make it visible to search engines, and to provide useful metadata for those who want to do interesting things with the content. But what it has to do with “wrappers,” “enforcement,” and “protection” is unclear. Reading the AP announcement and the graphic that accompanied it, one is struck by the thought that perhaps the AP has been snookered into believing that it’s getting “DRM for news,” when in reality it’s simply using an open-source news metadata markup language with Creative Commons rights expression.

Down the road, of course, the AP might go to Congress and ask that whatever tracking and rights system it settles on be given the force of law. It’s not as crazy as it sounds; European publishers already hope to get a law enforcing the Automated Content Access Protocol.

It’s likely that this debate will soon come to New Zealand. More information about the scheme at Crunchgear

Thanks, from the Creative Freedom Foundation team