The acceptance by some Governments of digital copyright policies advanced by the rightsholder community would go to suggest that anachronistic conceptualisations of copyright remain deeply entrenched in law and policymakers’ thinking, and that how the Internet actually works does not. A good example lies in the aforementioned temporary electronic copy language, which is present in nearly all US free trade agreements.
This language likens a physical copy to a virtual one, which, if actually recognised, would become a problem for Internet Service Providers of all stripes. This is because Internet traffic is transmitted from point A to point B by making “temporary copies”. We can think of copying as how the Internet “breathes”.
Strictly applied, the right would pretty much make the Internet illegal. Approaches like this indicate that the way we are thinking about adapting copyright to the Internet is, as Professor Rebecca Giblin has put it, applying “physical world assumptions” to “software world realities”.
Doing this ignores the complexities of the Internet, and policies formulated in this way usually generate bigger problems and greater costs than those they are meant to alleviate.
Copyright laws come from the age where copying was a physical act, and it is the physical act that is regulated. This does not work well in a digital world.
This is in no way arguing against copyright as a legitimate intellectual property right. I argue that laws and policy should focus on the use, not the copying.
As part of normal practice, jurisdictions develop principles that help organise and direct their legislative reviews. For example, in reviewing exceptions and limitations to copyright, Australia recently released its Copyright and the Digital Economy discussion paper. Listed therein are five framing principles for reform: “1) acknowledging and respecting authorship and creation, 2) maintaining incentives for creation of works and other subject matter, 3) promoting fair access to and wide dissemination of content, 4) providing rules that are flexible and adaptive to new technologies, and 5) providing rules consistent with Australia’s international obligations.” (Australian Law Reform Commission, “Copyright and the Digital Economy (DP 79)”, Discussion Paper, June 2013.)
They seem like good principles.
If we accept that there should be a review of New Zealand’s copyright law, then what should the guiding principles for that review be?
The principles listed above are all good and we would do well to use them as a base in developing our own set. Flexibility seems to be a highly desired characteristic of next generation copyright law. The traditional utilitarian principle behind copyright also remains relevant – that creators should be incentivised by reward in order to create works the public can consume. Copyright has always been a balance between the author and the public good.
Perhaps it is time to add another party to the balancing act: the Internet. Copyright policies, when they relate to online activities, are Internet policies too.
Given the importance of the Internet to modern society, it stands to reason that the impact on the Internet of copyright policies should factor into the equation. The best copyright laws and policies would work with the Internet, and not against it.
I look forward to the copyright review.