The principles of copyright

Not everybody in New Zealand cares about copyright law. For most people, it’s a pretty esoteric thing that has very little impact on the way they lead their lives – right up until the moment they discover they can’t copy the latest Coldplay CD to their iPod (at least, not unless they own a Mac.)

New Zealand copyright law was last updated in 1994, and it’s safe to say that there have been a few developments since then – most of them with “digital” written in front of them. Our legislation didn’t really anticipate any of this stuff, nor did it pay attention to what people actually did – such as making copies of CDs for the car. So there has been an update to the copyright law in the pipeline for some time, with the intention of updating the legislation to better reflect the realities of the 21st Century.

The bill – The Copyright (New Technologies and Performers’ Rights) Amendment Bill – was introduced into Parliament last week for its first reading, and after some spirited resistance from Nandor Tanczos and the Green Party, has been referred to the Commerce select committee. Submissions close on 16 February 2007.

The good stuff: The Bill recognises Fair Use, and seems to take a balanced view of copyright in the preamble.

The bad stuff: The drafting of the Bill bears little resemblance to  the preamble, and gives away practically all consumer rights in favor of a son-of-DMCA Frankenstein. Oh, and there’s the minor matter that infringements are now criminal offences with a 5 year prison term and $150,000 fine attached.

In other words, despite the noble words at the beginning, the Bill as written is a media lobbyists wet dream. So a submission to the select committee is in order. There has been some very useful discussion on the Public Address System (threads here and here, and Russell’s original post that started the whole debate), which has helped clarify my thinking on what needs to change.

Herewith, therefore, are the five principles that I think should guide the reform of copyright law in New Zealand:

Principle 1: Fair Use is desirable and should be legalised. This includes format shifting and time shifting for all types of media (not just CDs), and there’s no sunset clause on this. By Fair Use I mean transferring content that you have purchased or otherwise legally acquired between devices that you own or effectively control.

Principle 2: Obtaining content without paying for it or otherwise legally obtaining it for personal use – either by shoplifting or digitally – is illegal and carries criminal penalties, the same way that shoplifting does now. As is the case with other forms of petty theft, the penalties are set in the Sentencing Act 2005 and are commensurate with how much you’ve “obtained”.

Principle 3: Copying content for commercial gain is definitely, completely and unequivocably illegal, and carries the whole $150K fine/5 years in jail penalty, along with confiscation of the equipment used to do the copying/manufacturing. People who rip off other people’s creativity to make a dollar are scumbags and should be punished accordingly, IMHO.

Principle 4: TPMs have special protection under the law only when they are circumvented to allow illegal commercial distribution. Companies are free to add them as they see fit, but consumers are free to remove them as they see fit to restore their personal Fair Use rights. For the avoidance of doubt, this means that personal Fair Use trumps TPMs. There are no penalties or otherwise associated with TPM circumvention for personal use, on the basis that this area should be decided by the market and there should be equal power under the law for both producers and consumers. However the same penalties that apply to copying for commercial gain equally apply for circumvention for commercial gain – 5 years in jail/$150K fine.

Principle 5: Truth in advertising and promotion is required. If, by applying a TPM, the use of content is restricted by the content owner, these restrictions must be clearly stated on the packaging of material sold in NZ in a form easily understood by a typical 12-year-old. For example, if a CD contains TPMs and WMA files, it must say “won’t work with an iPod”; if a DVD is encoded for other regions, it must say “won’t work with NZ DVD players”; if a plasma TV doesn’t have an HDMI input it must say “won’t work with Sky high-definition programmes”. In the event that the item protected by a TPM doesn’t work in the manner expected, consumers are entitled to a full refund. The manufacturer or producer of the item is also liable for prosecution for deceptive and misleading conduct under the provisions of the Fair Trading Act.

Stephen Marshall also has a very useful set of blog posts that look at the detail of the Bill – well worth a browse if you’re interested in the legal implications of some of the proposals.

There are a couple of other implications that are worth exploring – but I’ll leave those for another post.