There’s life in the old dog yet (Part 2)

In Part 1 of this post we looked at what copyright was, and the impact of the internet particularly on content distribution. Part 2 looks at the enforcement of copyright.

Whose rights anyway?

One major impact of the internet has been a massive increase in copying and distribution of digital content in violation of copyright.

The impact of this on creative business models is a matter of debate. Some argue that copying is actually not a bad thing because free music distribution can raise awareness and thereby boost sales, because creators do not actually rely on copyright to get by anyway, or because content distributors are just unhelpful middle-people whose demise should be unmourned.

Others argue more fundamentally that creation, always a derivative process on some level, now builds so completely on the previous creations of others that traditional copyright is just out of step with the reality of the way modern creativity works. The particularly brilliant “Everything is a Remix” is a good example of these arguments.

One might wonder whether copyright needs to last as long as it does: it began at a maximum of 28 years in the United States, and only for authors who actually asked for it, but can now be as long as 70 years after the life of the author. And there are clearly good arguments to update copyright for the digital age, for example, to take account of the way the Internet actually works, to align rules across countries to encourage easier global distribution of content, to improve the lot of archivists and librarians, and to prevent obviously good things, like Google’s project to scan all the world’s books or another similar effort begun by academics, from being derailed by what seem like fusty copyright debates.

The Empire strikes back

All that said, content owners typically take the view that infringing file-sharing is a serious threat to their business. They might prefer a future of more sophisticated copyright controls, longer copyrights, and more effective enforcement. Some legislative efforts have been denied, notably SOPA and PIPA in the United States, and the original s92a back here in New Zealand.

There are two particular fronts of note at present.

First, in March 2010 negotiations began on the Trans-Pacific Partnership (TPP), which aims to create a regional free-trade agreement between Australia, Brunei, Chile, Malaysia, Peru, Singapore, the United States, Vietnam and New Zealand. There are persistent reports that the United States is endeavouring to use the TPP to encourage other potential signatories to change their intellectual property laws to strengthen anti-copying rules and, by extension, improve the commercial position of US-based movie and music studios. Pressure continues on the New Zealand government to discourage trading away intellectual property changes.

Second, some countries have passed laws that attempt to make Internet Service Providers (ISPs) responsible in some way for their customers who illegally download copyright materials. The picture is mixed but generally recent efforts to make ISPs legally responsible for their customers’ copyright breaches have failed unless the ISPs knew their services were being using inappropriately (Australia, the UK, or New Zealand). The nature of the internet, which rests on copying, and the ease of distributing content would make life very hard for ISPs if the rules worked any other way.

But there are many countries, including New Zealand, that have put in place a system where alleged copyright infringers can face fines if they do not change their behaviour in response to notices advising them that they have been spotted illegally downloading material.

The government here has just completed a consultation on the level of the fee that rights holders are required to pay ISPs to process the notices and send them to the ISPs’ customers. We can expect further news on this review later in the year. The Minister is also expected to reconsider in due course whether to introduce disconnection of user’s internet service as a remedy available to the Copyright Tribunal.

The question of the effectiveness of these laws is mixed (positive view one, two – negative view one, two). In New Zealand so far the laws seem to have had an impact on the way files are shared but not on the overall volume. And strangely the rightsholders do not appear to have made substantial use of the new copyright notice system created for them at substantial cost. There has not yet been reported a single notice issued for illegal downloading of movies, and as yet none of the notices that have been sent were in relation to music by New Zealand artists, although Rihanna did appear – no doubt her people are working to recover some of her million dollar song costs.

This was supposed to be the future

Whatever the rights and wrongs of it, these approaches seem rather like King Canute trying to hold back the tide. Ruthless enforcement of copyright rules seems both increasingly futile in the internet age, and increasingly out of sync with what people think the rules should be, as the rise of the Pirate Party on a platform including copyright reform in some parts of Europe seems to suggest.

Plus it is hard to have a lot of sympathy for major content studios if they make unsupportable claims about the losses caused by breach of copyright – although the US government calls them “sizeable”, or when they get the public offside by seeking penalties far out of line with perceived wrong-doing.

It is particularly galling for customers that content owners so stringently complain about alleged breaches of copyright while failing to make their content available legally to people who are willing to pay. This is particularly an issue in New Zealand, it seems, with geographical restrictions on services meaning that we have no direct access to such modern-day conveniences as Netflix or Hulu. No wonder content distributors are described as being at war with their own customers.

The real issue is that copying and sharing of content, which used to be hard, has become supremely easy. Basing the entire content system on rights to restrict copying is no longer a good idea. The head of the World Intellectual Property Organisation, part of the UN, has recently said interesting things about how to go about changing the existing copyright system to focus on opening up access to content rather than closing it down. One can see the attempts to find new online business models as effectively experimenting with changes to copyright rules. That is clearly the work of years, since it requires the countries of the world to get used to the idea that they need to rework their intellectual property laws for the internet age.

The New Zealand government is planning to review some of our copyright laws next year, which will look at some of these issues. The Australian Law Reform Commission is doing what looks like a more fundamental review across the ditch.

This debate is not so much about the appropriateness of copyright itself – as discussed in Part 1 of this article, the fundamental concepts of copyright underlie content distribution on the internet. The debate is about access to copyrighted materials, and whether business models can be found that actually give users options other than copyright infringement. As yet that remains a work in progress.


Hayden Glass is a Principal with Sapere Research Group, an Australasian consulting firm. Thanks to Simon Fogarty, a Senior Associate at AJ Park, a leading New Zealand intellectual property law firm, for his assistance on the legal definitions of copyright in this article, to Dave Lane of Egressive, a leader in the Free and Open Source Software movement in New Zealand, for his help with the material on Free and Open Source Software, and to Imogen Wall, an international communications consultant, for her expert editing advice. All errors and opinions remain Mr Glass’s.

This post was originally published on the TUANZ blog.


One thought on “There’s life in the old dog yet (Part 2)

  1. Pingback: There’s life in the old dog yet (Part 1) | whereishayden

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