TPP and copyright

A good article by Geoff Cumming at the NZ Herald:

If you think opponents of the Trans Pacific Partnership are typically anti-free trade/anti-globalisation conspiracy theorists, consider these unlikely bedfellows: librarians, software exporters, researchers, book lovers, fans of DVDs, media creatives and people who download music. The negotiations for a trade deal covering 11 Pacific nations have managed to unite these apparently unconnected sectors in alarm.

I wouldn’t say they are opponents. Some people are opposed to the no matter what its form is. They often oppose all trade deals.

Other groups and individuals have concerns over potential provisions – especially those in the US written draft intellectual property chapter. To date the NZ Govt and other countries have not agreed to these, and have proposed alternative wording which would mean no change in current NZ law.

Parallel importing is in the firing line, according to the leaked draft of the US position. This could affect not just knock-off copies but our freedom to source licensed brands without the premium charged by licensees.

Trade deals are meant to liberalise trade. Restricting parallel imports is actually going in the other direction.

Apart from the damage to our Christmas shopping budgets, the Libraries Association says a ban on parallel imports would slow down access to new-release books in libraries. A longer length would restrict what libraries are able to digitise. They could be prevented from overriding technological protection measures such as zone restrictions on DVDs. Users of iPhones and iPads may risk fines for “jailbreaking” devices to add non-licensed functions. Longer periods would narrow the options for musicians and media creatives.

The longer copyright term proposed is especially worrying. We already have life plus 50 years. I actually think that is too long. Life + 20 years is more than adequate when you consider the purpose of copyright is to reward and incentivise creators.

Internet and copyright law specialist Rick Shera is concerned about proposals to increase powers to prosecute and hike penalties – up to US$150,000 ($180,000) per infringement.

“There have been cases in the US where housewives have been sued over [downloading] five to 10 songs,” says Shera. “You could end up with an iPod with $4 million of infringements on it, as rights holders are able to seek a multiple of the damages suffered.”

And we have seen here that the music rights body will try and claim 90 times the value of a song based on hypothetical situations.

The film and music industries, which are driving the US goals on IP, want internet service providers (ISPs) to monitor internet activity for copyright breaches at their own expense and to pass on alleged abusers’ names to rights holders, says Shera.

Telecommunications Users Association chief executive Paul Brislen says the huge monitoring costs would be passed to consumers.

“If ISPs are required to filter stuff or block websites, it’s the consumer who pays at the end of the day. It will lead to things like deep pocket inspections [filtering] of everybody’s content which will slow down the internet and raises privacy issues. ISPs risk being sued for the behaviour of their customers – it becomes quite laughable. You get lawyers claiming to represent rights holders and demanding take-downs for content they don’t have any rights to or clients they don’t represent. It’s the kind of nonsense that only the American legal system engages in.”

I think our current law is a pretty good balance. ISPs do have to respond to requests to pass on notices to customers whom allegedly infringe. But they get their costs (in the main) reimbursed.

The devil is in the detail – and it quickly descends into terminology that only trade treaty specialists and techno geeks can decipher. Susan Chalmers is policy lead for internet NZ and spokeswoman for Fair Deal, a coalition of the interest groups. She believes that the draft US position threatens the very workings of the internet, for instance by challenging the right to store copied material, known as caching. “The internet works by making temporary copies, or ‘transient reproductions’, of data in order to transmit it from point A to point B,” says Chalmers. “The US proposals threaten the exception [in copyright law] that ensures that copyright owners don’t abuse their power by suing anyone who intentionally or unintentionally makes a temporary copy.

Basically the US draft says any copying is infringement, but then says we’ll give you an exception for caching and the like. We actually need copyright laws that focus on use of material, not the fact it may be copied. The Internet is the world’s largest copying machine.

A summary:

Contentious wish list

Interest groups’ key concerns over leaked draft of US IP chapter.

• Extension of copyright terms, eg, from 50 to 70 years for books after author’s death.

• Clampdown on exceptions to copyright rules, e.g, “fair use” provisions.

• Patents on software (New Zealand has already reversed its plan to exclude software in review of patent law).

• Parallel imports subject to veto.

• Internet service providers responsible for monitoring and policing.

• Rights holders can insist on removal of material.

• Offence to circumvent technological protection measures (e.g, region codes on DVDs, technology locks on iPhones).

I’m actually up in Auckland for a couple of TPP events today. My hope is that the NZ Government will continue to maintain its position that the TPP IP chapter should be consistent with current NZ intellectual property laws.

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