Digital Copyright Bill
October 29th, 2007 at 10:52 am by David FarrarOn the 23rd, Parliament had more debate on the second reading of the Copyright (New Technologies and Performers’ Rights) Amendment Bill. This Bill has been improved by the Select Committee, but there are still significant areas of concern:
The best speech concerning some of the weaknesses still in the Bill, comes from Nandor Tanczos in his second reading speech.
Let us begin with the issue of format shifting — the copying of works to different formats for more convenient or preferable use. A typical example might be ripping a CD to a computer or an MP3 player. The Select Committee removed the sunset clause from the fair use provisions, and we welcome that. It made no sense to recognise for the first time a right to, for example, copy a track from a CD onto a device but then have only that right last for a couple of years.
However, the Select Committee countered that move with some retrogressive steps. … In addition, the committee has retained provisions that unreasonably restrict time shifting and has clarified that copyright owners can opt out of fair use provisions. Presumably, that might mean just putting a sticker on the cover of a CD. We would find that unacceptable.
Lastly, the provision still excludes video, because in the words of the committee: “… format-shifting of music for private and domestic use is widespread, while format-shifting of other types of copyrighted works is not.” Maybe it is not so widespread as to have reached the ears of the members of the committee, but even John Key is now on YouTube. Not that I expect any but the most loyal or masochistic to be watching him on a portable, but the point is that the assumptions that the committee used in making that determination simply do not hold in the modern world. We believe that the public has been let down by format shifting in this area and, like other ill-conceived prohibitions, they will simply ignore it.
It is hard to claim a law is based on solid principle when you allow audio format-shifting and disallow video format-shifting. The principle is the same – you have purchased a licence and a copy of a “work” and why should you be forced to buy multiple copies if you have multiple viewing devices. If you have a video Ipod, why can you not legally watch a movie on it, if you legally purchased the DVD?
However, we are extremely concerned about clause 92C and the retention of the notice and takedown regime previously referred to by the Minister in the second reading in relation to claims of breach of copyright. Under the bill, if an Internet service provider is informed about a claimed breach of copyright in relation to material it stores, then it is liable if it does not “as soon possible after becoming aware … of facts or circumstances that make it apparent that the material is likely to infringe copyright in the work, delete the material or prevent access to it”.
I think it is important that members note the words “likely to infringe”, because an internet service provider, in practice, will interpret this as “might possibly infringe a copyright work”, because it simply cannot afford to take the risk. This sort of measure can easily be abused — and has been abused in other jurisdictions. The recent case of Solid Energy attempting to injunct a satirical annual report put together by opponents of its Happy Valley coal mine is a case in point. Under this provision, the internet service provider would have had to remove the material immediately Solid Energy complained, even though the court in that case ended up finding substantially in favour of the defendants.
The Green Party would much prefer a notice provision whereby notification of a claim of breach of copyright would require the internet service provider to notify the person responsible for the material alleged to be in breach. In most cases, the person will either admit guilt or simply fail to respond. Both of those examples would lead to the immediate removal of the material. It would be only a small percentage that would contest the claim, and the matter could then be adjudicated in an impartial manner. We believe that this approach would provide fair protection to copyright holders while also protecting legitimate use, or at least allow claims to be contested. The current notice and take-down provision, even with the right to sue for unjustified proceedings, does not do that, especially in relation to cases where there is a reasonable argument to be made in either direction.
And indeed Nandor highlights the problems with a notice and takedown regime. We have seen this abused in the United States and in other countries. The Church of Scientology is famous, for example, for its campaign against Internet users who discuss or criticise Scientology “secrets”.
No doubt at the Committee of the House stage, there will be amendments put up to fix some of these flaws. It would be nice if these were given due consideration by all the parties. I mean really, do you want to vote against an amedment that would allow copying a legally purchased DVD to a Video Ipod?
Related posts:
- Copyright (New Technologies) Bill
- Digital Copyright Workshops
- Digital Copyright
- Copyright (New Technologies) Bill
October 29th, 2007 at 11:20 am
OT – DFP, is there a ‘General Debate’ post today?
Vote:October 29th, 2007 at 11:30 am
david, sorry … that was, of couse, DPF
Vote:October 29th, 2007 at 2:04 pm
It is hard to claim a law is based on solid principle when you allow audio format-shifting and disallow video format-shifting. The principle is the same – you have purchased a licence and a copy of a “work” and why should you be forced to buy multiple copies if you have multiple viewing devices. If you have a video Ipod, why can you not legally watch a movie on it, if you legally purchased the DVD?
Because it’s the creator’s property, therefore they can make any rules and conditions they like regarding what they’re selling you. You know, FREEDOM OF CAPITALISM and all that.
Vote:October 29th, 2007 at 3:49 pm
stan: It gets a wee bit more murky when ownership is asserted over concepts and intangible data.. which is why copywrite initially was given a limited timespan (unfortunately many country’s are legislating to lengthen copywrite all the time).
The state balances copywrite laws with a limited timespan and the principle of fair use (which is what the article is about).
Vote:October 29th, 2007 at 4:16 pm
I actually found out about this a while ago (perhaps last year) and was appalled at this bill. Recently, I found out about it again and got reminded of just how slow the politicians seem to be and how out of touch they are.
While I’m not completely familiar with the current copyright law, it appears that your browser caching copyrighted files counts as copyright infringement. Thankfully that is getting updated, but I have been joking to people about how it is illegal to surf the internet in NZ.
The time limit for time shifting is stupid. It is vague (“a more convienient time”) and unnecessary. With DVD recorders now, it would mean that you would have to destroy your DVD disc after watching the video on it.
I’m not too sure if the law actually takes exact wording of laws into account or if they use logic, but the thing for copying music to devices says “No more than 1 copy is made for each type of device for playing sound recordings that is owned by the owner of the sound recording”. Now, it depends on the meaning of “for”, but it seems like you can make any number of copies you want to devices which do not play sound. But seriously, I think the number of devices should be at least 3, although I would prefer it to say “Copies may only be made for the sound recording’s owner’s devices”, so you can have any number of each device, as long as you own them. I see little point in restricting the number of devices if the person has to own the devices as well.
This bill actually made me start to investigate how a member of the public would make a submission on a bill, but unfortunately, I was too late to participate.
Also, if the current law does not allow for it, I think the bill should add something similiar to the USA’s Fair Use policy, probably the only good thing to come out of the DMCA (if I remember correctly).
And I agree with video format shifting needing to be addressed. With 1TB hard disks available and being able to cram a whole movie into 700MB, you can store over 1,000 movies on a single hard disk. If I had a hard disk that size, I would definitely love to store my DVDs on one to access easily, instead of needing to go and find the disc on my shelf and all that. And with home networks these days, being able to access all your video and audio from many different computers and devices, video format shifting makes sense. I don’t think we should wait another 10 years or more before the Copyright Act gets updated “properly” again.
Vote:October 29th, 2007 at 4:22 pm
Stan, doesn’t address the inconsistency. Music creator’s have no right to choice over format shifting, but film creator’s do? How is that logical. Surely either both do or both don’t. Arguing that people aren’t doing it yet is a) wrong, and b) not logical.
Vote:October 29th, 2007 at 4:26 pm
Copyright is supposed to be there to allow creators of works to share their works without fear of loss of income from it. It’s one of the reasons for open source and other copyright alternatives, I guess. People who create works who don’t care about income from it, but want some control over how it is used.
So, logically, copyright should only be there to protect a creator’s income. Things such as parody and using only clips from a work should not affect a creator’s income. Or do you think that copyright should entitle a creator to receive income for EVERYTHING which uses their creation? Copyrighting ideas? Should I have to pay to copy my CD to 2 different devices of the same type? It doesn’t hurt the artist’s income if I have his/her CD on 2 MP3 players. But should I have to pay them for that luxury?
Vote:October 29th, 2007 at 6:01 pm
Stan, doesn’t address the inconsistency. Music creator’s have no right to choice over format shifting, but film creator’s do? How is that logical. Surely either both do or both don’t. Arguing that people aren’t doing it yet is a) wrong, and b) not logical.
what i’m saying is, what right do you have to format shift? music creators are paid by the people that buy their publishing rights. this includes for example mp3 player companies and cd stores. the less sales they get from either is affecting their income, and the more we cheat by buying only one and simply copying the other the more we screw over the workers who either work at the cd company or at the mp3 company (theft). it’s like saying oh well we saw Lord of the Rings on TV therefore it should be ok to simply take a video from the video store because it’s simply in a different format – when the income of the video store was independent of the TV company
Vote:October 29th, 2007 at 9:11 pm
And my point is that the bill as it stands permits this for music, and not for video. DPF’s point remains – the bill is inconsistent. We should do both or neither.
Personally, I think there is a grey line in what you buy when you buy a copyrighted work. Do you buy the right to enjoy the work, or do you buy the right to enjoy the work in the specific version that you purchased it? If you buy a book, are you entitled to photocopy it and highlight passages (maybe you don’t like writing in the book itself)? If you buy a CD, are you entitled to make a backup? Are you entitled for that backup to be MP3? Are you entitled to listen to that backup even when the original isn’t corrupt or lost, so long as you only listen to one at a time? Are you entitled to leave one copy in your car? Are you entitled to listen to one in your car whilst your partner listens to the other at home at the same time? Are you entitled to give the copy to friends? Are you entitled to sell the original on eBay once you have ripped it?
Personally, I believe I should be entitled to a backup, I should be allowed to format shift, and I should be able to listen to both so long as I only listen to one at a time. If my partner wants her own copy, she needs to buy one. I cannot give it to my friends, when I sell my original I must delete all copies of it. That makes sense to me.
At heart it remains a question as to what you purchased – the artistic work (the thing that attracts copyright), or the physical manifestation of that work?
Your video example is not logically consistent. Format shifting to me covers moving from a physical representation that I purchased to another physical representation that I funded – I pay for the hard drive space, iPod space, or blank CD. Walking into a video shop and stealing their physical representation would be theft, pure and simple.
Vote:October 29th, 2007 at 11:11 pm
Stan,
It is not the creators property. When I buy a DVD, or music CD – clearly that DVD or CD physically belongs to me – and I can do many different things to it.
But the most important thing, the thing that I derive enjoyment from, and hence the thing that compelled me to purchase the DVD to begin with, is watching or listening to the content. The value to the consumer is in the watching or listening. If I can’t watch or listen to it -> the value goes down…. down… down – until that value is equivalent with the hassle of downloading a bittorrent.
Format shifting increases the value of artistic creative works. It creates a more compelling reason to buy content. All my colleagues who are heavy downloaders of content are also the biggest purchasers of content – its mostly a case of try before you buy. The creative content industries and pro-copyright lobby need to get their head out of the darkness and smell the fresh air.
Vote:October 30th, 2007 at 9:31 am
As an aside, the vagueness of copyright law, as it pertains to digital formats, has led many companies to be quite explicit and detailed in their online agreements. For example, I recently purchased Hollie Smith’s “album” online, and the agreement I ticked (and actually read before doing so) allows me to copy it to 5 (five) independent devices. I suspect that more and more companies and artists may do the same thing.
What interests me is how artists like Prince and Radiohead are using the internet to promote their work, and make a lot of money from it even while effectively giving away their works. Savvy! But that was a digression and another topic.
Vote:October 30th, 2007 at 9:56 pm
in general the license provisions of most software packages specifically allow you to make a copy for backup purposes.
Licences of musical and video recordings similarly are very specific about what you are allowed to do with that recording. For instance you aren’t allowed to buy a DVD and play it in your pub. You aren’t allowed to buy CDs and just play them in your restaurant (you need to also pay APRA royalties). What you may do are all specified in the licence, which forms a contract with you when you purchase the product.
The government with this act is seeking to override all these contracts.
I can see how it’s nice for the vast hordes of thieving rippers and burners to be allowed to do it now, but making something legal just because lots of people do it doesn’t really make much logical sense.
And just because people don’t understand what copyright is doesn’t make copyright theft ok. Just because you own the DVD doesn’t mean you own the rights to make any income off it. The people that made the films spent maybe hundreds of millions of dollars on it for your benefit. People who paid for records also paid a lot for it, and their revenue streams are tightly controlled and limited.
So this act I just think will contribute to the fate of content providers. Less money back from the market means less money into production. We’ll be watching product-placement versions of money-for-nothing synthesized shortland st.. hmmm, that could be an improvement.
And how do you think the multinational music companies are going to react? It’s going to be a case of “dang it Earl, that little ole New Zeeland’s gone all Taiwan on us – they reversed our copyright treaties”, “well Jim, lets just pull out of that market, it’s smaller than Minneapolis anyways”.
As for local talent, who don’t even make enough money to live off, and local indie labels who really struggle and are largely in it as a public service, it’s a real slap in the face – the government siding with the theives.
Vote:October 30th, 2007 at 10:00 pm
Redkea,
yes, you own the DVD – the physical media. But you certainly don’t OWN the information on it. You purchased a RIGHT to view it, under strict limitations, and that’s it.
If you owned it, you could make copies and sell them. You know that would be wrong.
Vote: