Internet Party bio photo

Internet Party

New Zealand Political Party.

Twitter Facebook Google+ Instagram Github Pinterest Youtube

Overview

1. Summary

Copyright policy now affects everyone- from students to businesses; from democracy to knowledge; from innovation to culture. The Internet and digital technologies are fundamentally questioning the very foundation and assumptions underlying copyright as we know it today, making a compelling case for a first principles review of copyright.

The Copyright Act is a print-oriented antiquity with expedient digital add-ons. Over the past six years, the only change has been the flawed “three strikes” amendment aimed at penalising peer-to-peer file sharing. In the meantime, many other countries such as the US, UK, and Australia as well as the European Union have moved ahead in assessing the changes required to set balanced rules in a digital age.

A range of amendments are required to the Copyright Act, including “fair use”, the full range of “fair dealing” exceptions, and allowing circumvention of geo-blocking to access legal online content overseas.

The Internet Party will focus on boosting the availability of legal content online for New Zealanders so that there are diverse options for getting it easily at reasonable cost, without delay, and in multiple formats.

It will also mandate that all taxpayer-funded research be openly available, with the public freely able to access and reuse it, unless prohibited under any required ethical consent or approval.

2. Problems identified

2.1 First principles review

The broad principles on which the concepts of copyright are founded – shaped over several centuries of the printed word era - are overdue for reconsideration in the new digital information paradigm. Copyright has evolved into the institution we know today mainly as a result of the bargains between market interests and an asymmetric balancing of public interests against those of corporate interests.

Individual freedoms and human rights must now be balanced against copyright frameworks and obligations imposed by international treaties. User-generated content challenges the notion that people are only passive consumers. The success of free software and free culture movements act as a counterpoint to traditional economic incentives theory underlying much of current thinking about copyright.

Copyright policy now affects everyone- from students to businesses; from democracy to knowledge; from innovation to culture. The Internet and digital technologies are fundamentally questioning the very foundation and assumptions underlying copyright as we know it today, making a compelling case for a first principles review of copyright.

The Copyright Act is a print-oriented antiquity with expedient digital add-ons. Over the past six years, the only change has been the flawed “three strikes” amendment aimed at penalising peer-to-peer file sharing. Even the promised review of the law last year, five years after the 2008 amendments, has been quietly shelved in the shadow of the secretive Trans-Pacific Partnership Agreement negotiations.

In the meantime, many other countries such as the US, UK, and Australia as well as the European Union have moved ahead in assessing the changes required to set balanced rules in a digital age. Some of the more progressive reviews have started taking a more evidence-based approach to strategically position them in addressing the opportunities and challenges of the digital age. They have started to account for a generation of digital natives, whose experiences and expectations are different from those accustomed to traditional concepts of creative ownership and dissemination.

While a first principles review can help paint a picture of the future state, the reality of international treaties and greater interconnectedness points to evolution of the current New Zealand law. The lack of a generalised ‘fair use’ exception in our copyright law is becoming increasingly apparent. There is also a pressing need to expand ‘fair dealing’ to allow the full range of exceptions recognised in international laws such as format-shifting, parody, education, disability, and heritage, as well as related exceptions for non-commercial user-generated content and content mining.

‘Safe harbour’ provisions in New Zealand’s copyright law (shielding Internet intermediaries from civil liability arising from the action of their users subject to meeting certain requirements), better protection for indigenous works, and locking away orphan works (where copyright owners are positively indeterminate or uncontactable) are other areas that need immediate review and improvement.

The legality of New Zealanders using technical means such as Virtual Private Networks and Domain Name System services to bypass geoblocking and access legal overseas content providers such as Netflix and Hulu Plus is unclear. Paying for such legal content from overseas may be illegal in New Zealand, in addition to considering the commercial terms a person enters into with the overseas business.

2.3 Open research

Most publicly-funded research produced in New Zealand is not readily or freely available to the public. There are now worldwide moves and nascent New Zealand initiatives towards a new age of open knowledge based on open access to research outcomes. The legacy approach is deeply embedded into funding, recognition, and peer review of academic works as well as the business models of publishers and some professional organisations. This makes change complex and difficult.

3. Relevant data/research

3.1 Background

Since the explosive arrival of the digital age and the Internet in the 1990s, copyright – a set of exclusive property rights given to owners in relation to their creations– has become an international battleground for lawyers, politicians, corporations, creators and consumers.

It is a battleground that has spilled into international trade relations, with small countries like New Zealand facing the prospect of making trade-offs between stronger copyright laws for greater exports of primary produce under the Trans Pacific Partnership Agreemen t.

After early development in Britain during the 18th century industrial revolution, principles of copyright law spread internationally and today are the subject of several international treaties giving global effect to the concept that a work created by one or more people in one country can be consumed elsewhere, and the creator(s) will be recompensed.

Although the concept of copyright has more or less retrospectively kept pace with earlier technological changes, such as the telegraph, the modern printing press, teleprinters, broadcasting, photocopiers, the home video market, cable TV and other innovations, copyright principles have more recently been overrun by the sheer pace of modern information and communication technology development, and its pipeline, the Internet, with its facility for widespread syndication by large media corporations.

As one New Zealand judicial copyright authority, Judge David J. Harvey, has written, copyright is in trouble, one of the principal reasons being it was developed under a different paradigm. He argues that paradigmatic change challenges our assumptions about and expectations of information. He contends that the digital paradigm is so revolutionary that it undermines some of the values and assumptions that underlie traditional copyright thinking, although there can be no doubt that intellectual property rights must have some protection.

“Copyright has always been contentious. It creates tensions on the part of content owners who don’t think they have enough protection, and consumers who think that content owners have too much protection.”

This is view of many copyright scholars, who believe the speed of technological change threatens to overwhelm international copyright conventions. One is US copyright authorityStephen Fraser, who sayscopyright law is totally out of date. “It is a Gutenberg artifact. Since it is a reactive process, it will probably have to break down completely before it is corrected.”

He wroteas long ago as 1997 that while it was undoubtedly true copyright laws had developed in response to technological changes, it was just as evident that the law had constantly been a search to balance the interests of creators,owners, and distributors of copyrighted works with those of the general public.

He said ifthe Trade-Related Aspects of Intellectual Property Rights(TRIPS) provisions included in the (1986-1994) Uruguay Round of the General Agreement on Tariffs and Tradehad seemingly exhausted the world where international copyright protection was involved, copyright attorneys and specialists had shown an apparently indefatigable ability to attack the problems left unresolved bythe TRIPS agreement.

With the spread of faster computers and the arrival of the Global Information Infrastructure (GII), that balance is once again brought into question. This time, experience with the technology offers much less guidance because how that technology has developed and how it is used is frequently misunderstood.”

Additionally, the balance of interest between users and copyright holders is almost completely changed. Distinctions between authors, distributors, consumers, and users of copyrighted works, which traditional copyright industries developed and encouraged and which copyright laws reflect, have been altered and blurred by the evolution of one part of the GII - the Internet.”

The DMCA is a US copyright law that acted, and continues to act since coming into effect in 1998, to be a global example in setting a balance between the interests of copyright owners and users in the context of technological advances such as the Internet.

One innovation of the law was to provide exemption for Internet intermediaries from direct and indirect civil liability (“safe harbour”) subject to their meeting specific requirements. As a balancing act, as President Clinton noted when signing the law, it serves to “protect from digital piracy the copyright industries that comprise the leading export of the United States.”

DMCA has been criticised on the grounds of being open to abuse by copyright owners and its general outlawing of circumventing technical protection measures even for lawful purposes.

New Zealand’s copyright legislation sprang from our traditional ties to British Commonwealth law, whose origins in this particular field date back to a 1710 British law called the Statute of Anne. This attempted to deal with creative ownership disputes in the burgeoning age of print. Then, as now, the main battleground was dominated by the owners of the means of publication, the printers, rather than the creators of content or those who consumed it.

The current New Zealand law, the Copyright Act 1994, is a much hashed legislative omnibus, which originally replaced earlier versions, the Copyright Act 1962, and before that, one dated 1913. It underwent major parliamentary review in the mid-2000s and from that emerged significant amendments – largely a massive block of new sections that attempted to address changing technologies - that became law in 2008.

Unlike in countries like Australia, the body responsible for reviewing law and making recommendations to Government, the Law Commission, has not been briefed in recent times (at least since 1986, when its online records begin) to specifically review copyright law. It did refer to the Copyright Tribunal a number of times in a reviewof tribunals published in 2008, noting that only 16 copyright cases had been heard by the tribunal since its formation in 1977. New Zealand is party to various international copyright agreements.

One of the most significant amendments to the Copyright Act 1994 – the “ three strikes” regime - came into force in 2011. It had a delayed entrance. Originally appearing as Section 92A in the major 2008 amendments to the Act, it was met with public protests across the political divide, including a mass blackout of websites, terming it as a ‘guilt upon accusation’ law.

These concerns were misguided, according to Copyright Council consultant Carmen Vietri, who wrote that public concern about section 92A was fuelled by misguided and sensational publicity.

A new version appeared three years later in September 2011, inserting Section 122A to U. This is commonly referred to as the ‘three strikes’ Act or ‘Skynet’ (a reference to the term used by a National Member of Parliament in the debates, often used to deride politicians for not ‘getting’ the Internet or copyright in a digital age).

This law provides for a graduated response scheme for peer-to-peer file sharing, with the copyright owner taking their case to the Copyright Tribunal upon giving a third notice of alleged infringement. The Copyright Tribunal can impose a maximum $15,000 penalty on the Internet subscriber via a ‘fast track, low cost’ process.

While considered to be better than the scrapped Section 92A, the three strikes law still provided , amongst other reasons, for the Internet account holder to be deemed guilty and unable to shift the burden on the actual infringer. The law also provided for termination of Internet access (which has not yet come into force).

The New Zealand Herald noted on July 23, 2012, quoting movie studios: “Internet piracy has reportedly halved since the three-strikes copyright law came into effect last year. However, Kiwis still flout the anti-piracy legislation, with 41 percent of internet users accessing ‘copyright infringing services online’ in February.”

However, analysts have noted that not only has the initial drop stalled, but that direct downloading and streaming (which are not covered by the three strikes law) was in any case increasing. Further, one study noted that a 75% drop in peer-to-peer traffic after the introduction of the law may simply be an indication of infringement going underground as it noted a huge increase in encrypted traffic using Virtual Private Networks and remote tunnelling, a way to avoid detection.

In November, 2013, the Law Societypublished a brief analysis of the measure so far. Patent attorney Kate Duckworth wrote that it was late in September 2012 before the first case was taken to the Copyright Tribunal, and it was not until early 2013 that the first decision was issued. Since then, there had been 17 decisions, all of them cases taken by the Recording Industry Association of New Zealand (RIANZ, now known as Recorded Music NZ). After a lull of six months, a further 11 cases are expected to have been taken to the Copyright Tribunal.

“As noted by Peter Dengate Thrush in his most recent decision on behalf of the Copyright Tribunal ( RIANZ v TCLEA-T7364885 ** [2013] NZCOP 17**(4 September 2013)), all of the decisions so far relate to the illegal uploading of songs.”

“In terms of the 17 decisions issued by the Copyright Tribunal, all of them have found the account holders liable, and all of them have issued fines against the account holders. The average fine is $500, well below the amount typically requested by RIANZ.”

“As Peter Dengate Thrush addresses in his most recent decision, there is a massive gap in public understanding of file sharing, particularly uploading. This is something for copyright owners to think about in the war against illegal file sharing.”

In a September 2013 paper by Monash University’s Rebecca Giblin entitled_Evaluating Graduated Response,_ an analysis of graduated response schemes in seven countries, she concluded that “there is little to no evidence that that graduated responses are either ‘successful’ or ‘effective’. The analysis casts into doubt the case for their future international roll-out and suggests that existing schemes should be reconsidered.”

A further assessment of New Zealand’s three strikes law concluded that “the law is likely to fail in its primary aims but have some relatively minor successes. This failure comes at a cost.”

Copyright is one of the chapters of the Trans-Pacific Partnership Agreement (TPPA) currently being negotiated in secret by twelve countries, including New Zealand. Based on the leaked text of the Intellectual Property Chapter that includes copyright, one analysis says it “would have extensive negative ramifications for users’ freedom of speech, right to privacy and due process, and hinder peoples’ abilities to innovate.”

Specifically, it will require New Zealand to:

  • Place greater liability on Internet intermediaries such as Internet Service Providers
  • Regulate temporary copies, a critical way of how the Internet works
  • Expand copyright terms, for example to life plus 70 years for works created by individuals and 120 years for corporate owned works
  • Restrictions on fair use
  • Escalate protection for digital locks (TPMs or Technological Protection Measures)
  • Ban parallel imports, and
  • Adopt criminal sanctions, even where there was no commercial motivation.

While the TPPA is still being negotiated, it has already delayed the promised review of the Copyright Act, due within five years of the 2008 amendments. Despite “significant public demand” for the review, a Cabinet paper said it was found to be “impractical” to go ahead until the TPPA was concluded and “the outcome made public.”

3.4 Extent and reasons for infringement

Results from a recent HorizonPoll showed that 21% of New Zealanders say they have illegally downloaded content from the Internet at some time when they know they should have paid for it, while 35% said they download legally by paying for content. About 5.8% say they have used a “virtual tunnel”, disguising their geographical location in order to buy content from overseas content providers, like Netflix, in the past week. This is the equivalent of 185,500 adults. Note that opinion is divided on whether accessing the US-based Netflix from New Zealand is l egal or not.

Music is the most downloaded content followed by videos, TV shows, and books. Unsurprisingly, younger adults are more likely to illegally download content online.

A study commission by Ofcom, the UK broadcasting and telecommunications regulator, found that the top 20% of infringers, while being 3.2% of total users, accounted for 88% of copyright infringement. At the same time, they also accounted for 11% of legal content consumed and spent significantly more on buying legal content as compared to the bottom 80% of infringers as well as non-infringers.

While many people illegally download content online as they are unwilling or unable to pay for it, anecdotally, others do so due to non-availabilityof legal sources, especially when there is a gap between its availability overseas and in New Zealand. In turn this reduces, for example, international box office returns for movies first released in the US by at least 7%but does not reduce US returns. Screening TV shows in New Zealand soon after their US broadcast is another example as well as tapping into global social media buzz.

In a survey of Australian attitudes and morality, “people regarded some illegal activities more acceptable than other things that could be considered dishonest.” The survey found that “Illegally downloading TV shows from the internet for free, for personal consumption” was half way in terms of illegality between the least acceptable, “Using a stolen credit cards to order goods over the internet” and the most acceptable, “Creating a fake US iTunes account to access and pay for content not available in Australia.”

In the view of copyright scholars like Judge Harvey, current responses to Internet-driven change do not amount to sound law-making, and it is time for a fresh look at the very principles of copyright. “I contend that the digital paradigm is so revolutionary that it undermines some of the values and assumptions that underlie traditional copyright thinking.”

The conundrum he discusses at length is basically straight-forward. Although now cast in the blinding new light of the digital paradigm, which has changed people’s behaviour and expectations, it is a clash of freedom to receive information with the traditional rights of content creators to protect their interests.

He grounds some of his theory in Article 19 of the International Covenant on Civil and Political Rights, which explicitly protects the media of expression and information. It came into sharp focus following a 2011 reportby special rapporteur Frank La Rue, who was considering whether access to the Internet constitutes a human right qualifying for protection under Article 19.

La Rue had no specific recommendations on copyright, but said: “While States are the primary duty-bearers of human rights, the Special Rapporteur underscores that corporations also have a responsibility to respect human rights, which means that they should act with due diligence to avoid infringing the rights of individuals.”

Harvey noted it tends not to be individual content creators who use copyright laws to enforce their rights but large publishing, broadcasting and film-making conglomerates, who have now persuaded lawmakers to introduce graduated responses against individuals – that is, versions of New Zealand’s “three strikes” law.

He said the reason is commercial copying and distribution, starting with the printing press, is a capital-intensive business. “Printing, radio broadcasting, television broadcasting, sound recording, [and] movies are all capital intensive and require large corporate structures, capital investment and financing to publish and distribute the works that the various technologies allow.”

Because copyright had called itself technology-neutral – “a theory which I would dispute vigorously” – the principles that were developed in the early years of copyright had remained – principles that had their grounding in print technology.

With the onset of the digital revolution, more and more means had become available for individuals to create their own content or to copy that of others. The conglomerates and the copyright corporates recognised that the power balance had shifted as a result of new technologies, to the point where everyone is able to copy.

“Yet the legal battles that have been waged recently reflect what happened in the early days of copyright – the litigation is at the urging of the corporate and conglomerates, and authors don’t really seem to feature at all.”

In some cases, the responses of the conglomerates had been to try to shut down the technology altogether – resist technological change by banning the technology, thus further emphasising the association of copyright with technology. “This is an example of vested interest complacency and the failure to understand the view of Mcluhan about rear view mirror thinking - by the time you recognise the problem caused by a new technology it is generally too late.”

Outlining the need for a new approach to copyright principles, one that evens up the imbalance favouring corporations, Harvey concludes: “… we must recognise that the values of the digital native regarding information have been moulded by the technologies that are available and that will continue to develop – technologies that make information instantly available; that make circumvention of restrictions easy; that allow for the widespread distribution of information in digital format that challenges the necessity for regionalisation of content; that is an ‘information now’ environment – we want the world and we want it now! Perhaps a rights-based approach may be a starting point.” (emphasis added)

On the vexed question of copyright’s impact on New Zealand’s trade relations, Victoria University’s Professor Graeme Austin has said the underlying exchange is not just about intellectual property. To live well on the frontier between copyright and the public domain “requires us to examine what we are like, and what we value – whether we are merely consumers wantingcheap stuff.”

“It involves asking if protections for the creative worker have any moral or political salience, or whether the universe of concerns informing our copyright laws should only be informed by a drive to get prices down as close as possible to the marginal cost of production. I call this the ‘Walmartization’ of copyright.”

This was partly why in the last few years he had become interested in the relationship between human rights law and intellectual property. Human rights provided compelling reasons for being concerned about the public domain, “reasons that go beyond getting more stuff more cheaply.”

“Human rights law draws attention to a broader set of values: educational rights, environmental rights, the right to food, an adequate standard of health, indigenous peoples’ rights – with which any decent intellectual property system, any decent society, must contend.”

One of the biggest critics of the heavy handed tactics adopted by copyright owners is Cory Doctorow. Writing in the Guardian, he says “The copyright wars have eroded the internet’s inherent resilience at a time when it is desperately needed… Laws provide for disconnecting whole families from the internet without due process because someone in the vicinity is accused of watching TV the wrong way… the entertainment industry can compile blacklists of sites they don’t like and get court orders demanding that service providers block them without a hearing, much less a trial.”

He goes on to write, “So what is the solution to the copyright wars? It’s the same solution we need to the press-regulation wars, to the war on terror, to the surveillance wars, to the pornography wars: to acknowledge that the internet is the nervous system of the information age, and that preserving its integrity and freedom from surveillance, censorship and control is the essential first step to securing every other desirable policy goal.”

Cory Doctorow argues that there is no such thing as copyright policy anymore. That might be true if the Internet was only a giant entertainment distribution infrastructure. Given that the Internet now touches every aspect of our lives, he says that copyright policy is now in effect Internet policy. It affects everyone and everything. He believes that the copyright wars a prelude to the coming war on general computation .

One innovation of relatively recent origin challenging traditional notions of copyright is user-generated content. As a report for UK regulator Ofcom says, “The spread of UGC [user-generated content] practice represents a profound shift in the relationship between the media, consumers and technology. The traditional, one-way producer-consumer contract has been complemented with a set of malleable, constantly shifting transactions in which the “end” user is now, potentially, just one node on a production-distribution-consumption cycle. At its best, UGC gives rise to vastly increased social and political participation and more widespread creative practice. But it comes with challenges too: it is profoundly disruptive to content and media incumbents and presents the public with significant dangers in terms of privacy and security.”

There are growing voices like Gary Shapiro in the US who call for the content and technology industries to work together. In an article he says, “American innovation is not just about content creation. It is also about inventions that allow society to benefit from the uses of content… The truth is that our national leadership in creativity depends on technology as well as content innovation.”

A study by Harvard Business School Professor Josh Lerner, titled “ The Impact of Copyright Policy Changes in France and Germany on Venture Capital Investment in Cloud Computing Companies”, finds a negative effect on venture capital investment in Europe after decisions imposing copyright liability on online services in France and Germany. The decline was equivalent to $113-156 million in traditional R&D investment.

3.7 Free Culture Movement

The free culture movement and Copyleft are social movements that promote the freedom to modify and distribute creative works as freely as possible. They object to over-restrictive copyright laws. One of its best known leaders is Professor Lawrence Lessig. He says that “copyright is an obstacle to cultural production, knowledge sharing and technological innovation, and that private interests – as opposed to public good – determine law.”

Prof Lessig founded Creative Commons, present even in New Zealand, as a way of automatic licensing copyrighted works “to produce cultural vibrance, scientific progress and business innovation.”

QuestionCopyright.org is another organisation whose stated mission is “to highlight the economic, artistic, and social harm caused by distribution monopolies, and to demonstrate how freedom-based distribution is better for artists and audiences.” Its motto is “When copying is outlawed, only outlaws will have culture.”

These movements are not without their own critics. For example, Jaron Lanier in his 2010 book Your Are Not A Gadget condemns the “depersonalization of crowd-sourced anonymous media (such as Wikipedia) and the economic dignity of middle-class creative artists.”

Copyleft, derived from copyright, is a general method for making a creative work as freely available to be modified, and requiring all modified and extended versions of the creative work to be free as well. It is a copyright licensing scheme in which an author surrenders some, but not all rights, under copyright law. Under copyleft, derived works may be produced provided they are released under the compatible copyleft scheme.

The economic incentives to work on free culture or copyleft content vary from copyright thinking. Incentives include recognition to realisation of beliefs to spin off benefits.

Further along the scale of opposition to copyright is the call for its complete removal. As far back as 1900, Leo Tolstoy expressed his refusal to accept copyright. In a letterto the Free Age Press he said, “I particularly desire to express my heartfelt gratitude to the translators and participators in your work who, in generous compliance with my objection to copyright of any kind, thus help to render your English version of my writings absolutely free to all who may wish to make use of it.”

On the anarchist side, an example is the Church of Kopimism which describes itself as “a congregation of file sharers who believe that the internet is holy and the copying of information is a sacrament. Kopimixing is a particularly sacred kind of copying because it enhances and expands the existing wealth of information.”

The philosophy of copyright looks at the purpose and justification for why copyright exists. There are many different approaches, both for copyright specifically as well as for the wider area of intellectual property.

According to one history of copyright, characteristic of the property approach to copyright are exclusivity (that is, the right to deny use by third parties of the intellectual territory claimed) and transferability (that is, the right to transfer title of the intellectual territory freely to third parties). Trespassing on intellectual territory (unauthorised copying) has been condemned with the property term ‘piracy’ since the eighteenth century. In turn, the property approach adapted from physical goods to intellectual is questioned. “Stealing” intellectual property does not deprive others of its possession as does physical goods.

The utility approach is also questioned by the term of copyright extending many years after the creator’s death.

Legal scholars often approach copyright in search of a coherent ethical justification for its existence and character. This approach may seem to be backwards- it might make more sense to start with an objective and then examine the law against it- but it is widely practised. This sidesteps the necessary question of whether copyright is in fact the best way to balance creator rights with societal benefit.

The economic imperative to provide a system of incentives underpinning the modern, market-driven notion is sometimes seen as the main or sole reason for the existence of copyright and, more generally, intellectual property. The argument is that it has been largely successful in financing the creation and distribution of a wide variety of new works, especially those requiring significant labour and capital.

Critics of copyright as a whole fall broadly into two categories: those who assert that the very concept of copyright has never benefited society, and has always served simply to enrich a few at the expense of creativity; and those who assert that the existing copyright regime must be reformed to maintain its relevance in the new information age. The latter group is particularly critical of ever extending the term of copyright, in particular for corporate works. The former point to the success of free software as an example of quality works created even in the absence of a copyright-enforced monopoly rent.

One papersuggests that “copyright evolved to the institution we know today mainly as a result of the bargains between market interests and not because justification theories had a major role in shaping this area of law.”

3.9 Open Access to Research

Otago University has been a pioneer in establishing a progressive policy around intellectual property in 2007, vesting ownership in the creators, which prepared it for the open educational practices that would follow. The Otago University Research Archive provides “public access to the University of Otago quality research outputs.”

In 2013, Lincoln University became the first university in New Zealand to adopt open access to publicly-funded research outputs. It allows staff and postgraduate students to make their research- including research data, teaching materials and public records- accessible on the Internet.

“The decision by Lincoln University to make content openly and freely available stems from the mindset that if public funding has supported the creation of an idea, research or other content, then it is reasonable and fair that it be made accessible to the public.”

More recently, the University of Waikato passed its open access mandatein March 2014. Contracts for the Marsden Fund, New Zealand’s fundamental research fund, include a clause mandating that researchers share their research data, meta-data, and samples collected within 12 months of completion of the project (unless prohibited under any required ethical consent or approval).

These moves accords with a worldwide trend for universities and other generators of original knowledge to begin to open up vast data banks formerly available only through paywalls or to those closely associated with research originators.

There are various versions of access, with most opting for periods of delay to enable publishers to continue to profit from research, although a scheme proposed in Britain would give immediate public release if authors, through their funders, were prepared to pay a fee.

A reportcommissioned by the UK government in 2012 said all papers should be open access from the start. Recommendations later accepted by the government included open access through a “gold” model, where article processing-charges were paid upfront to cover the cost of publication; “walk-in rights” for the general public, so they could have free access via public libraries to global research publications owned by members of the UK Publishers’ Association; and extending the licensing of access enjoyed by universities to high technology businesses for a modest charge.

Nature website reported that an alternative open-access model was already thriving around the world, and particularly in the United Kingdom. “Under green open access, research funders can require that peer-reviewed papers be made openly accessible in online repositories, without the author paying a fee. This usually happens some months after publication, a time period that allows publishers to sell access to the paper for long enough to turn a profit. Researchers can also post pre-publication versions of their papers in institutional repositories.”

There is a growing global momentum towards open access with the European Commission hoping to push for an open-access mandate in its 2014–20 research-funding programme Horizon 2020. With income of publishers and some professional bodies under threat, “measures to promote open access need to be … international in scope if they are to achieve their full potential.”

In the US, the President said in 2013 that publications from taxpayer-funded research should be made free to read after a year’s delay, thus expanding a policy that had previously applied only to biomedical science. However, the administration can expect strong resistance from publishers, if previous experience with earlier moves to open up research by the National Institutes of Health (NIH) is a relevant indication.

In New Zealand, Creative Commons Aotearoa NZ has been calling for similar reforms. “The basic principle driving the movement for open access to research is that the public should be able to freely access and reuse the research outputs that come out of public funding. This includes everything from books and journal articles to conference proceedings and research data.”

“At present, most of New Zealand’s publicly funded research is not freely accessible. In fact, most New Zealanders have to pay a fee to access research funded by the taxpayer. The good news is that this is quickly changing. Across the world, public funding bodies are insisting that all funded research be made freely available in order to increase public engagement, maximise innovation and accelerate the production of new knowledge.”

Creative Commons outlines four basic concepts: “Green and Gold refer to the manner in which a work is made available. Green OA: a version of the paper is deposited in an institutional or discipline-specific repository, in addition to formal publication in a journal, sometimes with an embargo period. Gold OA: the full, published version of the paper is made freely available by the publisher, sometimes for a fee.”

“Libre and Gratis refer to copyright and licensing restrictions. Gratis OA: the paper is available to read free-of-charge, though its reuse is still restricted, for example by ‘All Rights Reserved’ copyright; Libre OA: the paper is made available under an open licence, allowing it to be shared and reused, depending on which licence is used.”

Creative Commons notes ten benefits of open access to scholarly research outputs:

  • Taxpayers can access the research they fund
  • Practitioners can quickly apply research findings
  • Researchers from the global south can access published research
  • Researchers are less likely to reinvent the wheel
  • Institutions do not need to pay to access research published by their own employees
  • Policy makers can utilise research findings
  • Journalists can report findings to the public
  • Educators from around the world can freely disseminate research to students
  • Speed of research cycle is increased
  • Greater exposure of research, potentially leading to higher citation rates

4 Examples of global leadership

A need to adapt copyright law to the digital paradigm is well understood by many countries like the US, Britain, Australia and those in the European Union.

United States: In 2010, the US Secretary of Commerce created an Internet Policy Task Force to conduct “a comprehensive review of the relationship between the availability and protection of online copyrighted works and innovation in the Internet economy”.

In mid-2013, it issued a vast green paper_,_ Copyright Policy, Creativity, and Innovation in the Digital Economy, which purported to identify all the problems faced in the digital paradigm, made a set of recommendations to tighten up copyright enforcement, and called for more special interest group and public input to resolving future problems.

The clash with freedom of expression presented a dilemma for the report writers, who reiterated the US Administration’s view “that ‘[w]hile . . . online piracy by foreign websites is a serious problem that requires a serious legislative response,’ we ‘will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.’

“We believe that solutions must be found, legislative or otherwise, but the values of free speech and cybersecurity must not and need not be compromised. It is critical to ensure that these values are appropriately accommodated in any legislation, court order or voluntary action.”

In 2010, the White House set up the Office of the U.S. Intellectual Property Enforcement Coordinator , which issued a report in 2011 calling for widespread legislative changes to combat what is saw as an all-out attack on US copyright holders.

“Piracy and counterfeiting in the online environment are significant concerns for the Administration. They cause economic harm and threaten the health and safety of American consumers.” By 2013, seven of its 20 recommendations had been enacted into US law.

The office’s second report, entitled 2013 Joint Strategic Plan on Intellectual Property Enforcement, said prosecutions were significantly up, and private sector corporations had come into line: “AT&T, Cablevision, Comcast, Time Warner Cable, Verizon, and major and independent music labels and movie studios entered into a voluntary agreement to reduce online piracy. Under the agreement, Internet Service Providers (ISPs) will notify subscribers, through a series of alerts, when their Internet service accounts appear to be misused for infringement on peer-to-peer networks. ** **

American Express, Discover, MasterCard, PayPal, and Visa agreed to a set of best practices to withdraw payment services for online sales of counterfeit and pirated goods.

Its comments on overseas trade partners were relevant to New Zealand’s involvement in the TPPA: “The Office of the U.S. Trade Representative (USTR) worked with Korea, Panama, and Colombia to bring our Free Trade Agreements into force, is negotiating a Trans-Pacific Partnership trade agreement that will include state-of the-art intellectual property protection and enforcement provisions, and is preparing to launch negotiation of a comprehensive Transatlantic Trade and Investment Partnership agreement with the European Union.”

The US Administration, while conceding a clash of principles – free expression versus copyright protection - advocates a tough line against what it terms “online piracy originating beyond U.S. borders”. A White House-sanctioned blog called We The People has run a petition seeking support for “new tools needed in the global fight against piracy and counterfeiting, while vigorously defending an open Internet based on the values of free expression, privacy, security and innovation”.

Europe : There is a range of initiatives seeking to rationalise copyright law that will create a significant European bloc, which is bound to be a major player in future global copyright developments and relationships.

These include the Licences for Europe stakeholder dialogue, which was launched by the European Commission in February 2013 following its December 2012 Communication on Content in the Digital Single Market.

The Licences for Europe website lists a number of other reports prepared in the last two years, including Joint Statement on Cross-border Portability of lawfully-acquired Audiovisual Content; Book sector’s roadmap to enhance cross border access, interoperability and discoverability of ebooks in the Single Market”; easier licensing for music - commitments by the music sector ** ** ( GESAC statement , ** **IFPI announcement**); **Toolkit for licensing, including micro-licensing in text and image works**; **Building the rights data network – enabling user access** **; User-generated content, press publishers engaging with their readers ; Statement of Principles and Procedures for facilitating the digitisation of, access to and increased interest of European citizens in European cinematographic heritage works; freeing up TV footage archives through digitisation: discussions between public broadcasters and rightholders; improving identification and discoverability of audio-visual content online: a declaration by the audio-visual industry ( Declaration on Audiovisual Work Identifiers); and A Statement of Commitment by STM publishers to a roadmap to enable text and data mining (TDM) for non commercial scientific research in the European Union.

United Kingdom: Prime Minister David Cameron ordered a review of UK copyright law in 2010, which resulted five months later in the report Digital Opportunity: A Review of Intellectual Property and G rowth. Principal author Professor Ian Hargreaves said he had sought never to lost sight of Cameron’s exam question: “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?”

“The short answer is: yes. We have found that the UK’s intellectual property framework, especially with regard to copyright, is falling behind what is needed. Copyright, once the exclusive concern of authors and their publishers, is today preventing medical researchers studying data and text in pursuit of new treatments.”

“Copying has become basic to numerous industrial processes, as well as to a burgeoning service economy based upon the internet. The UK cannot afford to let a legal framework designed around artists impede vigorous participation in these emerging business sectors.”

The latest move by UK authorities is to launch a similar regulation to New Zealand’s “three strikes” law, which provides for warnings of graduated severity (and finally monetary sanctions) to be directed at people breaking copyright law by downloading web content.

A BBC report in May, 2014, said: “After years of wrangling, a deal between entertainment industry bodies and UK internet service providers to help combat piracy is imminent. BT, Sky, TalkTalk and Virgin Media will send ‘educational’ letters to customers believed to be downloading illegally.”

“But a document seen by the BBC shows that rights holders are set to make do with considerably weaker measures than originally asked for.” The first letters - known as ‘alerts’ - are expected to be sent out in 2015 and must be “educational” in tone, “promoting an increase in awareness” of legal downloading services.

Ireland: A review of copyright law begun in 2011 produced a report in 2013 which said copyright reform “is in the air. In the recent past, Canada has introduced comprehensive amending legislation; Germany and India have made small but significant changes; the United Kingdom is in the course of implementing extensive reform proposals; Australia is on the cusp of a truly radical transformation; the European Union has important ongoing processes relating to licences, orphan works, and infringement procedures; and, in the United States, both Congress and the Copyright Office are getting in on the act.”

The Irish report said if its recommendations were implemented the position of rights owners would be improved by an extension of remedies, technological protection measures, and rights management information. Photographers in particular would benefit from the recommendation that copyright protection for metadata be strengthened.

“The position of copyright users will also be improved, by recommendations to introduce the full range of exceptions permitted by EU law, including format-shifting, parody, education, disability, and heritage, as well as related exceptions for non-commercial user-generated content and content mining.

“Furthermore, copyright deposit libraries, in particular, will benefit from the recommendation that the existing legal copyright deposit provisions be extended to digital publications. Finally, all users will benefit from a comprehensive recommendation that any contract term which unfairly purports to restrict an exception permitted by the Act should be void.”

Australia: The Australian Law reform Commission published a copyright reform reportin February 2014 that recommended radically simplifying the law by adopting a “fair use” approach to most issues. It said an important and positive feature of fair use was its flexibility.

Fair use differs from most current exceptions to copyright in that it is a broad standard that incorporates principles, rather than a detailed prescriptive rule. Law that incorporates principles or standards is generally more flexible than prescriptive rules, and can adapt to new technologies and services. A fair use exception would not need to be amended to account for the fact that consumers now use tablets and store purchased copies of copyright material in personal digital lockers in the cloud.”

Canada: An updated law, the Copyright Modernization Act, was introduced in 2012 in an attempt to bring Canada into line with global reforms. Its preamble says copyright protection is enhanced when countries adopt coordinated approaches, based on internationally recognised norms. These were reflected in the World Intellectual Property Organization Copyright Treaty and the World Intellectual Property Organization Performances and Phonograms Treaty, adopted in Geneva in 1996, but not wholly reflected in Canada’s Copyright Act.

4.2 Australian adoption of “fair use”

The Australian Law Reform Commission in February, 2014, tabled Copyright and the Digital Economy, the result of an 18-month Inquiry during which the Commission produced two consultation documents, undertook 109 consultations and received 870 submissions. The report contained 30 recommendations for reform, the key one recommending the introduction of a “fair use exception” to Australian copyright law.

“Fair use differs from most current exceptions to copyright in that it is a broad standard that incorporates principles, rather than a detailed prescriptive rule. Law that incorporates principles or standards is generally more flexible than prescriptive rules, and can adapt to new technologies and services.”

“A fair use exception would not need to be amended to account for the fact that consumers now use tablets and store purchased copies of copyright material in personal digital lockers in the cloud. Although standards are generally less certain in scope than detailed rules, a clear principled standard is more certain than an unclear complex rule. The Report recommends replacing many complex prescriptive exceptions with one clear and more certain standard—fair use.”

“Fair use also facilitates the public interest in accessing material, encouraging new productive uses, and stimulating competition and innovation. Fair use can be applied to a greater range of new technologies and uses than Australia’s existing exceptions. A technology-neutral open standard such as fair use has the agility to respond to future and unanticipated technologies and business and consumer practices.”

“Fair use is technology neutral, and it is not confined to particular types of copyright material, nor to particular rights. However, when it is applied, fair use can discriminate between technologies, types of use, and types of copyright material. Uses with some technologies may be found to be fair, while uses with other technologies—perhaps that unfairly encroach on rights holders’ markets—may not.”

“This is one of the strengths of fairness exceptions. Fair use is a versatile instrument, but it is not blunt.”

4.3 European Commission – Ten Pledges

The Licences for Europe stakeholder dialogue launched by the European Commission in early 2013 resulted in a document called Ten Pledges to Bring More Content Online. It set out two parallel tracks of action - to complete its on-going effort to review and modernise the EU copyright legislative framework; and to facilitate practical industry-led solutions to issues on which rapid progress was deemed necessary and possible.

The dialogue was organised into four thematic working groups: cross-border access and portability of services; user-generated content and micro-licensing; audio-visual heritage; and text and data mining.

Two groups – user-generated content and text and data mining – did not reach consensus among stakeholders on either the problems to be addressed or the results. “However, the discussions provided useful insights into the issues at stake and some understanding of the positions of different stakeholders. At the same time, concrete pledges, expected to make a difference in online users’ life, were presented in those areas, too.”

The dialogue outcome, Ten pledges to bring more content online, was without prejudice to the possible need for public policy action, including legislative reform, the Commission said. It expected the partners involved to implement the pledges fully and without delay, and would monitor progress.

The Commission said by spring 2014 it would complete its on-going review of the EU Copyright framework with a view to a decision whether to table legislative reform proposals. A public consultation would be launched in the near future in the context of the review.

The 10 pledges are:

  1. To advocate further development of cross-border portability of subscription services;
  2. Improve availability of e-books across borders and across devices;
  3. Easier licensing for music;
  4. Easier access to print and images;
  5. Enabling the identification of creators’ work and rights online;
  6. More active reader involvement in the online press;
  7. More heritage films online;
  8. Freeing up TV footage archives through digitisation;
  9. Improving identification and discoverability of audio-visual content online; and
  10. Easier text and data mining of subscription-based material for non-commercial researchers.

4.4 Aaron’s Law

The title comes from a US case involving Aaron Swartz, an “Internet innovator and activist” who killed himself in January 2013, becoming a cause celebre for those seeking open access to knowledge.

Democratic Representative from California, Zoe Lofgren, and Ron Wyden, a Democratic Senator from Oregon, have written that at the time Swartz faced the possibility of severe punishment under US Code 1030: Fraud and related activity in connection with computers ( CFAA)— multiple felony charges and up to 35 years in prison by the government’s own declaration – for what amounted to an act of civil disobedience. Aaron attempted to make documents - many created with public funding - freely available to the public.

They have introduced a Bill (as yet not actioned by Congress) that would rewrite the code to protect people from what they claim is unfair prosecution by the State. “The CFAA is a sweeping Internet regulation that criminalizes many forms of common Internet use. It allows breath-taking levels of prosecutorial discretion that invites serious abuse.”

“Aaron’s Law is not just about Aaron Swartz, but rather about refocusing the law away from common computer and Internet activity and toward damaging hacks. It establishes a clear line that’s needed for the law to distinguish the difference between common online activities and harmful attacks. The law must separate its treatment of everyday Internet activity from criminals intent on causing serious damage to financial, social, civic, or security institutions.”

The proposed amendments would define “access without authorization” under the CFAA as gaining unauthorised access to information by circumventing technological or physical controls — such as password requirements, encryption, or locked office doors.

Notwithstanding this change, hack attacks such as phishing, injection of malware or keystroke loggers, denial-of-service attacks, and viruses would continue to be fully prosecutable under strong CFAA provisions that Aaron’s Law did not modify.

5 Policy proposals

5.1 First principles review

The Internet Party will call for Government to commission an independent, first principles review of copyright to guide future lawmaking. The review will be specifically tasked to take into account economic, technological and cultural perspectives in a digital age. It will be expected to consider human rights as well as the imperatives of New Zealand’s digital economy and innovation. There will not be an a priori assumption that copyright is the best or only or even necessary way to effectively promote creativity and new creative works.

The Internet Party will publicly consult with all stakeholders on amending the Copyright Act 1994 and implement changes as a priority. A second round of amendments will likely be required after the first principles review. The amendments will align copyright more closely with the opportunities and challenges facing New Zealand in a digital age. This includes:

  • Allow for the parallel importation of non-infringing digital goods, services, and content similar to that for physical goods. Allow for circumvention of geo-blocking to access legal online content similar to that for technological protection measures for copying. Make it clear that there will be no liability, primary or secondary, in New Zealand for using technical means to access legal sources of content overseas.
  • Amend the “three strikes” peer-to-peer file sharing provisions so that six rather than three notices are required; remove ability to suspend Internet accounts; make actual infringer rather than account holder liable; require multiple infringements of a particular copyright work to count only as a single infringement; and suspend penalties and role of the Copyright Tribunal for a period of five years so that copyright infringement notices are educational alone (after five years when the suspension is lifted, the penalty for copyright works that are not legally available online to New Zealanders shall be deemed to be zero).
  • Introduce a generalised ‘fair use’ exception. Expand ‘fair dealing’ to allow the full range of exceptions recognised in international laws such as format-shifting, parody, satire, education, disability, and heritage, as well as related exceptions for non-commercial user-generated content and content mining.
  • Clarify and strengthen ‘safe harbour’ provisions (shielding Internet intermediaries from civil liability arising from the action of their users subject to meeting certain requirements) to prevent their abuse by copyright owners.
  • Allow greater public access, format shifting, and creation of new creative works from orphan works (where copyright owners are positively indeterminate or uncontactable) in the public interest.
  • Consider whether legal protection for Digital Rights Management (technological restrictions that control what people can do with, and how they can access, digital media they have legally purchased) should be completely removed.

The Internet Party will call for Government to commission an independent, objective, evidence-based analysis of economic, technological, and cultural perspectives to recommend the length for which copyright in a work should be granted to individuals and corporate owners. It is anticipated that substantially smaller periods of time than currently granted will result.

Note that the party’s policy position in relation to the Trans-Pacific Partnership Agreement, including copyright, is in its Independence policy.

The Internet Party will focus on boosting the availability of legal content online for New Zealanders so that there are diverse options for getting it easily at reasonable cost, without delay, and in multiple formats. Towards this goal, discussions with local and overseas copyright owners and other interested parties will be initiated to identify and remove barriers. Innovative approaches will be encouraged, for example voluntary collective, blanket licensing via ‘collecting societies’ as songwriters did for radio broadcasting.

5.4 Mandate open research

The Internet Party will mandate that all taxpayer-funded research be open access with the public able to freely access and reuse it, unless prohibited under any required ethical consent or approval. There may be a period of transition and a Task Force will be created to support and accelerate implementation of the mandate. The Task Force will also examine and address issues related to funding, peer review, and evaluation of academics and academic works resulting from the mandate.