Hollywood wants DIA child porn filter extended to copyright

July 4th, 2014 at 1:00 pm by David Farrar

3 News reports:

It has been revealed top Hollywood studios asked for access to a controversial government-run internet filter – so they could stop Kiwis accessing pirate and torrent websites.

RadioLIVE reported the Motion Pictures Distributors Association wanted access to the Internal Affairs child pornography filter, so they could block access to copyrighted material.

But they were knocked back by the Government and Internal Affairs Minister Peter Dunne says that it is partly because internet service providers refused.

“They were not prepared to agree to that extension and in any case it would have shifted the mandate somewhat from DIA’s primary focus on preventing sexual abuse of young children.”

The child pornography filter is a voluntary one.

It is good to see the Government knocked the request back. If I want a filtered Internet, I’d live in China.

When the voluntary DIA filter was introduced, many of us were nervous that one day other groups would try to extend it beyond the narrow remit of child abuse images, and try to have it block all material that different groups want blocked. As it is voluntary, that can’t happen easily – ISPs would stop using it. But beware the day when a political party proposes making it mandatory.

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A Mega lawsuit

April 9th, 2014 at 11:00 am by David Farrar

Stuff reports:

Internet Party leader Kim Dotcom is facing a new lawsuit in the United States from six Hollywood film studios.

They claim in their suit the Megaupload founder “facilitated, encouraged, and profited” from illegal file-sharing on the site.

The Motion Picture Association of America (MPAA) filed the suit on behalf of the studios this morning (NZ time).

The lawsuit was filed by Twentieth Century Fox Film Corporation, Disney Enterprises, Paramount Pictures Corporation, Universal City Studios Productions, Columbia Pictures Industries, and Warner Bros Entertainment in the US District Court for the Eastern District of Virginia.

The US Government is already seeking to extradite Dotcom to face charges of copyright conspiracy, racketeering and money-laundering allegedly carried out by his file-sharing company, Megaupload.

It’s an interesting move. Does that signify concern over whether the criminal case will succeed, or was this always planned?

Dotcom is specifically named in the suit, under his most famous name as well as Kim Schmitz and Kim Tim Jim Vestor.

Kim Tim Jim Vestor???

According to the Government’s indictment, the site reported more than $175 million (NZ$203.4m) in … proceeds and cost US copyright owners more than half a billion dollars.

The studios allege Megaupload paid users based on how many times the content was downloaded by others. But the studios allege the site didn’t pay at all until that content was downloaded 10,000 times.

This is a key detail in both the criminal and civil lawsuits. Other file-sharing websites do not pay people based on how many downloads they get for content they upload. This is how they allege they incentivised copyright infringement, rather than just provided a file sharing platform (such as the new Mega).

This does not mean the lawsuits will be successful. But it is a key factor in why Megaupload was targeted, and not other file-sharing sites. If someone can earn say $10,000 by uploading the latest movie release, well that is a pretty good incentive to do so.

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The Google Books Judgement

November 22nd, 2013 at 1:00 pm by David Farrar

Google recently won a court case the US Society of Authors brought against it for their Google Books service. The Society of Authors claimed that Google’s scanning in of 20 million or more books without the permission of the rights holders was a breach of copyright. Google argued that it was fair use as they didn’t allow anyone to download a copy of the book, just search for and quote extracts of up to quarter of a page.

The details of what Google does to protect a book i its entirety being copied is interesting, as are the reasons the Judge gave for his decision which was a strong argument for the benefits of fair use.

For books in “snippet view” (in contrast to “full view” books), Google divides each page into eighths — each of which is a “snippet,” a verbatim excerpt. …

Google takes security measures to prevent users from viewing a complete copy of a snippet-view book. For example, a user cannot cause the system to return different sets of snippets for the same search query; the position of each snippet is fixed within the page and does not “slide” around the search term; only the first responsive snippet available on any given page will be returned in response to a query; one of the snippets on each page is “black-listed,” meaning it will not be shown; and at least one out of ten entire pages in each book is black-listed.

So even if one went through an entire book trying to use words found in it, to get an electronic copy, you would end up with 10% of pages missing and 12.5% of the other 90% of pages missing. Anyone wanting an electronic copy would just scan a hard copy in themselves1

The Judge lists the benefits of Google Books:

  1. Google Books provides a new and efficient way for readers and researchers to find books.  It makes tens of millions of books searchable by words and phrases. It provides a searchable index linking each word in any book to all books in which that word appears.
  2. Google Books has become an essential research tool, as it helps librarians identify and find research sources. Google Books has become such an important tool for researchers and librarians that it has been integrated into the educational system — it is taught as part of the information literacy curriculum to students at all levels
  3. Google Books greatly promotes a type of research referred to as “data mining” or “text mining.”  Google Books permits humanities scholars to analyze massive amounts of data — the literary record created by a collection of tens of millions of books. Researchers can examine word frequencies, syntactic patterns, and thematic markers to consider how literary style has changed over time.
  4. Google Books expands access to books. In particular, traditionally underserved populations will benefit as they gain knowledge of and access to far more books. Google Books provides print-disabled individuals with the potential to search for books and read them in a format that is compatible with text enlargement software, text-to-speech screen access software, and Braille devices.
  5. Google Books helps to preserve books and give them new life.
  6. By helping readers and researchers identify books, Google Books benefits authors and publishers.

These benefits are a great list of why fair use is so important in copyright.

Also worth quoting the judgement on whether Google Books may serve as a market replacement for books.

Here, plaintiffs argue that Google Books will negatively impact the market for books and that Google’s scans will serve as a “market replacement” for books. (Pl. Mem. at 41). It also argues that users could put in multiple searches, varying slightly the search terms, to access an entire book.  (9/23/13 Tr. at 6).

Neither suggestion makes sense. Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already — they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.

The argument that someone could use Google Books to get a free electronic copy is basically nuts. It’s impossible and even if i was not, would be far more effort than just scanning one in yourself.

To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered — whether potential readers learn of its existence. (Harris Decl. ¶ 7 (Doc. No. 1039)). Google Books provides a way for authors’ works to become noticed, much like traditional in-store book displays. (Id. at 14-15). Indeed, both librarians and their patrons use Google Books to identify books to purchase. (Br. of Amici Curiae American Library Ass’n at 8). Many authors have noted that online browsing in general and Google Books in particular helps readers find their work, thus increasing their audiences.  Further, Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of  on-line shopping, there can be no doubt but that Google Books improves books sales.

You have to wonder why the Society of Authors took this case? I know many authors who did not support their action. They were arguing against a service that helps generates sales for them.

I think it is just being reactionary. I guess once upon a time the Society of Authors probably opposed allowing libraries to lend books out, as they saw it as a threat also.

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The movie import ban

October 19th, 2013 at 8:56 am by David Farrar

Aimee Gilliver at Stuff reports:

Cinema owners will benefit from the extended ban on parallel imports of movies, but in three years retailers will be able to sell a movie on DVD at the same time it is showing in cinemas, under new law.

The Copyright (Parallel Importing of Films) Amendment Bill passed its third reading in Parliament this week. It reduces the ban period on parallel importation of films for commercial use from nine months from the international release date to five months for the next three years.

The ban allows the New Zealand copyright holder of a film to control when retailers are allowed to access copies to provide to consumers – otherwise, a movie could be sold on DVD by a retailer who had imported it from a foreign right-holder at the same time it was being shown in cinemas here.

It was initially set to lapse on October 31 but has been extended for three years in a reduced form to give cinema owners time to adjust, and convert to digital exhibition. …

Blogger David Farrar said the difficulty in buying content legally has helped create a generation of people who download unauthorised copies because it is the only way they can view what they want to, when they want to, and in the form they want to.

“Ultimately New Zealanders want to be able to purchase movies the same day as they can read reviews about them online.

“Any law that makes it harder for New Zealanders to purchase movies legally is likely to be reasonably ineffectual as people won’t wait five months or nine months to be able to buy a copy for themselves.”

The three-year extension may prevent new business models emerging because it gave an exclusive period for movie theatres, Mr Farrar said.

“Many New Zealanders could well be happy to pay say $50 to view a movie at home the week it is released, but there is no legal way for them to do so.”

The three-year ban, with a shorter time period, is an advantage, Mr Farrar said.

“It gives movie theatres time to plan for an era where they’ll be competing with online delivery of content.

“Some may struggle, but some may adapt well to the competition and focus more on making going to the theatre part of a better experience and a fun night out.”

As I said, I think it would be great if we can buy content in the format we want it, when we want it.

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Guest Post: Gareth Hughes on copyright

October 8th, 2013 at 3:00 pm by David Farrar

A guest post by Greens MP Gareth Hughes:

London School of Economics on copyright.

A new report out by the London School of Economics busts some of the myths around copyright infringement and the laws passed that try to punish online file-sharing. 

The London School of Economics Media Policy Project has published a report entitled “Copyright & Creation: A Case for Promoting Inclusive Online Sharing”, which argues ‘The creative industries are innovating to adapt to a changing digital culture and evidence does not support claims about overall revenue reduction due to individual copyright infringement,’ and that a punitive approach risks ‘incentives for innovation and growth will be weakened.’

It’s a timely report that challenges the claims the music industry is at mortal peril from online file-sharers and that graduated response regimes like our Copyright (Infringing File-Sharing) Amendment Act, or more popularly known as the ‘Skynet Law’ are the best way forward to address the challenge of copyright infringement.

I am a Spotify premium subscriber and I just love being able to access a lot of the world’s music conveniently, portably and legally for a small monthly charge. It is one example where the music industry is innovating and adapting to the digital world profitably. The report notes in 2013, for the first time UK revenues for online music was higher than for CDs and vinyl combined as part of overall revenue growth. The report recommends a review of the UKs stalled Skynet-style law, the Digital Economy Act and that ‘a copyright enforcement model that is out of touch with today’s online culture will only supress innovation and dampen growth.’

Another recent paper, this one published from Australia’s Monash University on copyright enforcement also found graduated response or three-strike laws internationally, including New Zealand’s own ‘Skynet Law’ were not working. In New Zealand’s case the report found the law was hardly acting as an effective deterrent to reduce online copyright infringement and people were simply switching from Peer-to-Peer (P2P) file-sharing sites to other methods such as cyber-lockers to obtain content

The New Zealand Government unfortunately has decided to delay the anticipated copyright review and with more reports published challenging the effectiveness of graduated response regimes to copyright infringement as seen in our Skynet Law it’s time the Government reopened the copyright debate and let evidence set policy. I would much rather the Government put their energy into promoting legal content over punitive laws that stifle innovation and plainly don’t work.

The London School of Economics report is a very good read at debunking the myth of revenues dropping.

I wouldn’t rush to judgement on how the NZ law is working. The level of fines have been reasonably modest, and what I will be interested in is how many infringement notices in total got issued over a year, how many went to a second and a third strike.

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Sky and copyright and Netflix

October 3rd, 2013 at 10:00 am by David Farrar

Eric Crampton blogs:

It seems that the lawyers at Sky didn’t like my post on Netflix. They’ve not been in touch with me about it, nor did they get in touch with the folks at SciBlogs about it when I syndicated it there.

But late last week, the National Business Review asked if they could run it as part of their Weekend Edition. I agreed, as I always do. Shortly after it went up at NBR, I received an email from NBR’s Head of Digital saying that they’d had to pull the piece after a legal threat from Sky TV. Sky’s lawyer wanted excised from the article the instructions on how to access Netflix from New Zealand. In my piece, I linked to an Australian website providing instructions on how to access Netflix. I also included a postscript noting that Hola seemed to work very well.

So it is there anything wrong with telling people how to get around geoblocking?

First, note that New Zealand generally allows “parallel importation”. The New Zealand Government, in general, does not think that it is its job to enforce whatever exclusive dealing arrangements that some overseas manufacturer wants to enter into with a domestic distributor. There is a minor exemption on DVDs and films where you cannot import films for commercial distribution for a period of five months from the date that the film is first made available to the public. This lets the theatres get a run where international windowing delays release here relative to the US. However, the ban specifically allows import of legitimate copies for personal non-commercial use. It would be reasonable to read accessing Netflix for personal use as falling into this category, though note that I am not a lawyer. I discussed the temporary ban here. …

But, by my read of 226b, the variety of mechanisms described at this Australian site simply work to circumvent a system controlling geographic market segmentation by preventing playback in New Zealand of a non-infringing copy of a work. Netflix’s catalogue of films and TV shows in the US is non-infringing in exactly the same way that a DVD on sale in the US is non-infringing. And buying a DVD there, bringing it here, and watching it on a region-free DVD player should be as protected as subscribing to Netflix via something like Hola or Unblock-us. Maybe it violates the Netflix terms of service in the US, and Netflix could be justified in cancelling somebody’s account if they deemed such use to be in violation of their Terms of Service. I expect that bringing a Region 1 DVD here and watching it on a region-free player might violate the DVD’s Terms of Service as well. But a take-down notice based simply on the use of the word Hola or a simple description stating that installing Hola was really easy? Again, I’m not a lawyer; hopefully I won’t have to consult one. I’ll rattle a tip-jar if I do and if it winds up being at all pricey.

Getting around geoblocking actually allows you to pay for a copyrighted work. I think we should resist all geoblocking. If you want less piracy, then allow us to buy the content we want.

Any lawyers have a view on whether Eric’s original blog post does fall foul of the Copyright Act?

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Geo-blocking

August 29th, 2013 at 10:00 am by David Farrar

Stuff reports:

Price gouging by international software companies is undermining New Zealand businesses and is unfair on consumers, the Green Party claims.

A survey by the party of more than 100 software and hardware products found prices were about 40 per cent higher on average here than in the United States.

It has called for an inquiry by Parliament’s commerce committee into the pricing gap, similar to one recently carried out in Australia.

That inquiry found evidence last month that Australians were commonly paying more than 50 per cent more than Americans for digital goods such as software, music and computer games bought online.

Multinationals can vary their country prices by detecting prospective customers’ internet protocol (IP) addresses and directing them to different online store fronts, in a process known as “geo-blocking”.

The Australian inquiry recommended that the government amend the Copyright Act to make it clear that it would not be illegal to circumvent geo-blocking by disguising IP addresses.

It also went further, by recommending the government consider banning geo-blocking if that did not have the desired effect.

Both excellent ideas. We are, or should be, one global market.

Victoria University economist Toby Daglish, who is also a director at the Institute for the Study of Competition and Regulation, said there were three main reasons why prices were higher in New Zealand.

The first was the cost of shipping physical items, and the second was the existence of robust consumer guarantee laws that protected customers.

Lastly, the “elasticity of demand” meant that, while countries with large populations could increase sales by lowering prices, those with a small population were less responsive to price change.

“The extent to which they can get away with that is linked to the extent of how they can stop people from buying things and shipping them here from other countries.”

They charge more, because they can! :-)

Technology journalist Bill Bennett said many pundits scoffed when the Australian Government launched its inquiry, but it had proved quite successful.

“A lot of people said they weren’t going to get a lot out of it because there’s bugger all a government can do . . . but what happened in Australia as a byproduct was the Australian Government managed to negotiate $100m off their bill with Microsoft.

“By getting this stuff out in the open in public, it puts a lot of pressure on.”

Information Technology Minister Amy Adams has instructed officials to work with their Australian counterparts to understand how the findings there may relate to New Zealand.

Not sure we need an inquiry per se as would find the same as in Australia, but anything that highlights the problem and puts pressure on for solutions is probably a good thing.

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Copyright and book availability

August 2nd, 2013 at 11:00 am by David Farrar

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Rebecca Rosen writes:

Last year I wrote about some very interesting research being done by Paul J. Heald at the University of Illinois, based on software that crawled Amazon for a random selection of books. At the time, his results were only preliminary, but they were nevertheless startling: There were as many books available from the 1910s as there were from the 2000s. The number of books from the 1850s was double the number available from the 1950s. Why? Copyright protections (which cover titles published in 1923 and after) had squashed the market for books from the middle of the 20th century, keeping those titles off shelves and out of the hands of the reading public.

Heald has now finalized his research and the picture, though more detailed, is largely the same: “Copyright correlates significantly with the disappearance of works rather than with their availability,” Heald writes. “Shortly after works are created and proprietized, they tend to disappear from public view only to reappear in significantly increased numbers when they fall into the public domain and lose their owners.”

This shows the importance of getting the balance right with copyright. Imagine if books never ever entered the public domain?

Absolutely books should be subject to copyright for a significant period of time, to allow the author to benefit from them.

But the current lengths of copyright are life plus 50 years in NZ and life plus 70 years in the United States. Both are far too long.

I’m tempted to say that copyright should expire upon the death of the author. However people might start shooting authors in order to get their books for free :-)

I think it is fair to say the the family of an author shouldn’t suddenly have their income disappear, the moment the author dies. But ridiculous to have to wait 50 to 70 years for a book to go public domain. I would think 20 years is about right – long enough for any young children to be supported as they become adults, if say their author parent died suddenly.

What do readers think should be the term of copyright? Comment below and/or vote in the sidebar poll.

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France drops three strikes

July 12th, 2013 at 7:00 am by David Farrar

The BBC reports:

France has halted an anti-piracy policy that threatened persistent offenders with internet bans.

A law passed by the previous government had let local courts suspend copyright infringers’ connectivity for up to a month if they were caught three times.

It was supported by the entertainment industry, but France’s current culture minister had said that she thought the penalty was “disproportionate”.

File-sharers still face fines of up to 1,500 euros ($1,923; £1,292).

The government added that it would now focus its efforts on sites that made money from offering illegally copied content rather than individual users.

Suspension is disproportionate. Good to see France call a halt to it.

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The Copyright (Parallel Importing of Films) Amendment Bill

July 8th, 2013 at 12:00 pm by David Farrar

The House has referred to a select committee the The Copyright (Parallel Importing of Films) Amendment Bill.

The Copyright Act has a provision that bans the parallel importation of films into New Zealand for nine months. This provision expires on 31 October 2013.

The bill proposed extending the ban for a further three years, but reducing the period of the ban from nine months to five months.

I think this bill moves the law in the right direction (a shorter ban period) but I’m not convinced we should have a ban at all.

Craig Foss in moving the bill said:

The Copyright (Parallel Importing of Films) Amendment Bill imposes a temporary ban on the parallel importation of films for commercial purposes for a period of 5 months from the date of the film’s first release to the public. A ban on parallel importing is necessary to enable cinemas to exclusively screen films for a limited period, before copies of films on formats such as DVD and Blu-ray are brought to the New Zealand market. Although many films are released in New Zealand cinemas at the same time as international releases, many films are delayed for several weeks or months due to factors such as seasonality, screen availability, profitability assessments, and competition with other films. Without a ban in place, parallel-imported copies of films could potentially be sold in competition with screenings in cinemas. This could potentially affect the viability of cinemas.

Two things occur to me.

The first is I am far from convinced that allowing DVD sales immediately would threaten the viability of cinemas. People choose to go an see a film at the cinema for a number of reasons – the big screen, the larger capacity, the night out, the better sound etc.

The second is why should we protect cinemas as a medium. Do we protect supermarkets from dairies? Do we protect record stories from open air concerts? Let consumers choose how they want to watch a movie I say.

I think the future is, or should be, that upon release consumers can choose where and how they watch a new movie – so long as they are willing to pay for it.

It may be that a digital copy of a new movie costs $50 for the first month, then $30 for the first five months and say $20 thereafter.

Also the ban on parallel imports for a period encourages unauthorised copies. If you can’t legally buy a copy of a film, then you are more likely to acquire an unauthorised copy.

Labour also backs this bill so it will pass:

Jacinda Ardern: Just to go back to the beginning, in 2003, as I understand it, Labour introduced a 5-year temporary ban that prohibited the commercial import of a film for a period of 9 months from the film first being made available to the public. There is a very explicit reason for this and it is very much based around the motion picture industry—in particular, our small cinemas that many of us may have frequented over the years. I particularly want to highlight the ones in some of our smaller towns and provincial areas that really do rely on the ability to at least get a first foot in the door when it comes to a release. The staging of releases is pretty important to remember: something that is released in the United States, for instance, that is timed around a school holiday period, does not naturally coincide with that period within New Zealand. So having that little buffer period for that industry, as it claims, is the difference between 165 jobs existing or not. Let us be really clear on that. That is work that PricewaterhouseCoopers has done on behalf of the industry to demonstrate that a loss of that window would have that effect.

Let us be clear, though: the industry does have to move with the times. Things are changing, and rapidly. So that is why, as I understand, this bill will put an expiry date of 2016. It also reduces the window from a period of 9 months, which is what we currently have, down to 5 months. That is a compromise that we feel very comfortable with. This is a message, I guess, to the industry that this is unlikely to be a tenable, long-term way of maintaining its ability to stay in front of the game in a digital age. This is, as it were, extra time for the industry to try to develop where it goes next, in the same way that the music industry is doing—and has started doing a very good job of it, I must add. So too does this industry have to start looking at that, and much more rapidly, as well. This bill will allow it the time to do that. It will allow those jobs to be retained while the industry works on how it tries to ensure that it remains viable in the future.

I agree with Jacinda that this bill is not a tenable long-term way of comping with the digital age. My concern is will we just see it get extended time and time again every three years? This is the second temporary ban. MPs should make very clear that this will be the last one.

You can submit on this bill up until 25 July. What do readers think? Should cinemas be able to have an exclusive period where only they can show a film?

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Go Slingshot

June 25th, 2013 at 11:00 am by David Farrar

Stuff reports:

The country’s third-largest internet provider, Slingshot, is likely to be on a collision course with Hollywood after launching the Global Mode service, the Telecommunications Users Association says.

The service disguises customers’ internet protocol addresses and can make it appear as if customers live in the United States or Britain. That means Slingshot customers can access online services that are not available in New Zealand, such as online television service Netflix and the US shopfronts of online stores such as iTunes.

Slingshot launched Global Mode as a free option for its broadband customers, promoting it as a service that they would use if they were hosting overseas visitors.

What a great idea. It is so frustrating that some online retailers refuse to sell you material based on your IP address. For example, there is no legal way to purchase the US House of Cards in new Zealand.

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NZ copyright review

June 18th, 2013 at 12:00 pm by David Farrar

Susan Chalmers writes at ADSL:

The Copyright Act was to be reviewed five years after the 2008 amendments. Today, such review would also extend to the more recent Copyright (Infringing File Sharing) Amendment Act 2011. …

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.

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The fair deal coalition

May 22nd, 2013 at 2:00 pm by David Farrar

Stuff reports:

Trade Me has joined 31 consumer and lobby groups from New Zealand and overseas in writing to Trade Minister Tim Groser to voice concerns about the Trans Pacific Partnership agreement.

The company is a member of the New Zealand-born umbrella group the Fair Deal Coalition, which was set up last year during the Auckland round of the negotiations to lobby against possible provisions in the yet-to-be-completed trade agreement.

The coalition fears the trade agreement could unduly strengthen intellectual property rights, for example by extending copyright by 20 years and introducing new controls on parallel imports. …

In its letter, the coalition asked Groser to reflect on the “variety of sectors” that stood to be adversely affected by such provisions. “As a group we are diverse, but we share one thing in common: we seek appropriately balanced intellectual property laws,” it said.

Trade Me spokesman Paul Ford said the firm backed the coalition because it was concerned the agreement could “result in a crappy deal for both Kiwi consumers and a decent chunk of the Trade Me community”.

“We reckon parallel importing is pretty important to New Zealanders as it means Kiwi sellers can source goods direct from licensed suppliers around the globe, so buyers get more choice and, with any luck, better prices too,” he said.

The Fair Deal Coalition has attracted support from advocates in six of the 12 countries which are party to the trade negotiations, including the United States, Canada and Australia.

The group’s founders include Consumer NZ, InternetNZ, the Royal NZ Foundation for the Blind and the Telecommunications Users Association.

I’m one of those involved in the Fair Deal coalition, and it is great to see it gain supporters in the major countries involved in the TPP.

I’m all for free trade deals, but that doesn’t mean I want a deal at any price, and I think the proposed US chapter on intellectual property is not balanced or a fair deal. I think the current NZ intellectual property laws are relatively well balanced and we should not agree to anything that would force a change to them. If enough countries stand firm on these issues, I am hopeful the US will modify its position. And to be fair to the US, they have already moved a considerable way by agreeing to writing exceptions to copyright restrictions into the text – a first for a free trade deal with them. But the current proposed wording is still not suitable.

Consumer NZ spokesman Hadyn Green said his group believed the trade deal’s documents had provisions “which may remove parallel importing in New Zealand”. That would mean retailers could no longer import copyright goods, from software to branded clothes, without the permission of the manufacturer, which Consumer NZ feared would push up prices for many products.

Bans on parallel importing work against free trade, and should not be in FTA.

A Foreign Affairs and Trade Ministry spokeswoman said last week that the parallel importing of copyright works had been raised in negotiations but there was no consensus among the negotiating parties on whether an agreement “should include specific provisions on this issue”.

Which hopefully means it won’t include such a provision.

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A good move from the Govt on patents

May 9th, 2013 at 1:25 pm by David Farrar

Craig Foss has announced:

Commerce Minister Craig Foss has today released a supplementary order paper (SOP) to clarify issues around the patentability of computer programmes in the Patents Bill.

“Following consultation with the NZ software and IT sector, I am pleased to be further progressing the Patents Bill with this SOP. These changes ensure the Bill is consistent with the intention of the Commerce Select Committee recommendation that computer programs should not be patentable,” says Mr Foss.

Today’s change is to codify a test set out in UK case law to provide clarification around the “as such” wording used in SOP 120 (tabled 28 August 2012).

“I would like to thank the NZ software and IT sector for their engagement over the last few months. I’m confident we’ve reached a solution where we can continue to protect genuine inventions and encourage Kiwi businesses to export and grow.

The SOP is here. A key extra clause is:

A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program.

There had been considerable concern that the previous proposed wording with the “as such” clause could lead to a lack of clarity in the law, and that it might not achieve its intention that software is not patentable. This extra clause provides that clarity and is excellent news from the Government and Minister,

To also achieve greater clarity, the SOP provides an explicit example of what is not patentable in terms of software, namely that a chip for a washing machine is, but an online filing software system is not (the code is copyrighted though).

The Institute of IT Professionals has welcomed the announcement:

The Institute of IT Professionals, New Zealand’s largest IT representative body, strongly supports the Government’s announcement today clarifying that software will not be patentable in New Zealand, removing a major barrier to software-led innovation. …

“The Institute thanks Minister Foss for responding to industry concerns, clarifying the Patents Bill’s intention to remove patentability of software and for taking extra steps to ensure the law around software patents is clear and unambiguous,” Matthews said. “Software will not be patentable in New Zealand and a major barrier to software innovation has been removed”.

“We also acknowledge the work of United Future’s Peter Dunne, Labour’s Clare Curran and other political parties who have listened to the industry’s concerns and contributed towards a solution,” Matthews said. “It’s great that all parties support software-led innovation in New Zealand.”

I’d agree with the IITP that MPs from several parties helped contribute to getting a law that will be clear and good for New Zealand. The recommendation to do so was a unanimous one by a select committee.

Ian McCrae, chief executive of New Zealand’s largest software exporter Orion Health agreed, saying today “We welcome this announcement. Under the current regime, obvious things are getting patented. You might see a logical enhancement to your software, but you can’t do it because someone else has a patent. In general, software patents are counter-productive, often used obstructively and get in the way of innovation. We are a software company and as such, our best protection is to innovate and innovate fast.”

John Ascroft, Chief Innovation Officer of Jade Corporation said “We believe the patent process is onerous, not suited to the software industry, and challenges our investment in innovation.”

Orion and Jade together account for around 50% of software exports from New Zealand.

The decision is also welcomed by InternetNZ:

InternetNZ (Internet New Zealand Inc) welcomes today’s tabling of a Supplementary Order Paper (SOP) that makes it clear that computer software is not patentable in New Zealand. …

The question of software patents has been an important issue for InternetNZ for several years. InternetNZ has previously made submissions on the issue, noting that software is inextricably linked to the good functioning of the Internet. Patenting software would not only make the continued development of the Internet more difficult, it would reduce innovation and could well stymie interoperability of various software platforms.

InternetNZ spokesperson Susan Chalmers says InternetNZ is happy to see the issue now resolved and looks forward to the passage and implementation of the Patents Bill, a long-awaited and much needed update to a large component of New Zealand’s intellectual property regime.

So it is a good outcome all around. Congratulations to Craig Foss for constructively working with industry groups to get this issue resolved, and kudos to other MPs such as Peter Dunne and Clare Curran who supported getting a good law.

I’m personally very pleased that National has taken a balanced approach on intellectual property issues. While of course there are areas of disagreement, the current Government has consistently moved things in the right direction. To name a few:

  • Repealed the previous three strikes guilt upon accusation copyright law
  • Suspended the provision for termination of Internet accounts for repeat copyright infringement
  • Set the copyright infringement filing fee at $25, $5 higher than recommended by officials
  • Kept the fee at $25 when reviewed, despite massive opposition from the MPAA
  • Have consistently rejected the US proposed IP chapter for the TPP
  • Amended the law to exclude software from being patentable

Now as I said, there are still a few areas I’d like further change. but overall the direction in the last few years has been a positive one.

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Harvey on copyright

March 26th, 2013 at 2:00 pm by David Farrar

Judge David Harvey has blogged a keynote speech he gave to the Australian Digital Alliance Forum on copyright law in the modern era. It’s a fascinating essay on the history of copyright, the changes over time, the balancing of rights etc.

He summarises his own proposal for copyright going forward:

 1. Copyright should not be seen as a property right – either actual or inchoate

 2. A copyright owner’s rights should not be absolute.

 3. Copyright should be seen as an exception to the wider rights of freedom to receive and impart information guaranteed by Art. 19 ICCPR – and, given copyright does not engage until expression (according to current copyright theory),  it must be subject to the supremacy of Article 19.

 4. Interference with Article 19 rights requires justification by the “copyright owner”.[49]

 5. Once interference with the Art 19 right is justified, any restrictions to the general right and any advantages that accrue for the benefit of the “copyright owner” may be permitted to the extent that they are:

a) necessary to meet the copyright owners interests and justification and

b) proportionate in terms of the extent of the interference

 6. Concepts such as fair use, protection term, remedies (and their extent) fall within the tests of necessity and proportionality rather than exceptions to a copyright owner’s right.

 I like the idea of the major right being the right to receive and impart information, and copyright restrictions must fall within this right as justifiable limitations or exceptions. I think that is superior to having copyright as the “major right” and then having to justify exceptions to copyright for purposes of quoting, parody, satire, academic scrutiny etc.

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Supreme Court upholds parallel importing

March 21st, 2013 at 2:00 pm by David Farrar

Arstechnica reports:

The importation of copyrighted goods made abroad has been an increasingly contentious issue in recent years. Easy access to Internet resale markets like eBay and Amazon have made it possible for a new breed of entrepreneurs to buy low and sell high in a wide array of areas. The Supreme Court handed these resellers a major victory today, issuing a decision [PDF] that makes it clear that the “first sale” doctrine protects resellers, even when they move goods across national boundaries. 

Those upstarts have peeved a lot of corporations, and some of them used copyright law to fight back. Textbook maker John Wiley & Sons sued a Thai student-entrepreneur named Supap Kirtsaeng, who had been buying cheaper (but non-pirated) versions of various textbooks in his home country, bringing them to the US, and selling them to his fellow students stateside on eBay. The price differentials were so big that there was quite a bit of money to be made; at trial, the publishing company’s lawyers hammered home the fact that they had counted up $1.2 million in receipts over the life of Kirtsaeng’s business.

Wiley argued those profits should be barred by copyright law. Their right to control prices abroad was actually part of their copyright grant, they argued. The textbook company won a jury verdict against Kirtsaeng, which was upheld by the US Court of Appeals for the 2nd Circuit, and Kirtsaeng appealed to the Supreme Court, arguing that his business was protected by the “first sale” doctrine.

Today’s decision vindicates the “first sale” doctrine, which allows the owner of a particular copy of a work to do whatever she wants with it after purchasing it. It overrides first sale losses in both the 9th and 2nd Circuits and makes it clear that digital commerce can flourish in the Internet era, even when it crosses borders.

This is good news. Once you purchase something you own it, and that ownership should include resale rights.

The world is increasingly becoming a global market. The days of different prices for different countries is crumbling under the Internet.

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Will the Supreme Court hear the Dotcom appeal?

March 2nd, 2013 at 10:00 am by David Farrar

Stuff reports:

Kim Dotcom’s fight against extradition to the United States looks set to go to the Supreme Court after losing his latest legal battle.

The Court of Appeal has overturned a High Court decision that ordered the disclosure of the documents that are the basis of the case against Dotcom.

The court said extradition hearings were not trials and the full protections and procedures for criminal trials did not apply.

US authorities want to extradite the German-born internet entrepreneur to stand trial on criminal charges alleging copyright piracy and racketeering.

Dotcom’s lawyer, Paul Davison, QC, said his legal team would seek to appeal to the Supreme Court.

The Supreme Court will need to give leave to appeal, as this would be the third appeal. The original ruling was in the District Court.  The first appeal was to the High Court and the second appeal to the Court of Appeal.

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The third copyright decision

February 23rd, 2013 at 7:00 am by David Farrar

Stuff reports:

The Recording Industry Association is not admitting to any disappointment over the size of awards handed down by the Copyright Tribunal against people caught illegally sharing music.

The tribunal has released its third “Skynet” ruling, awarding $797.17 against a CallPlus customer who was caught pirating Elton John and Coldplay tracks.

The Recording Industry Association of New Zealand (Rianz), which represents major music labels, had asked for a $3931 penalty.

However, the tribunal instead ordered $7.17 in direct compensation, the repayment of $250 in fees Rianz had paid to get the case to the tribunal and a deterrent of $180 for each of the three “strikes”.

Now there are three cases decided, we are getting a good idea of the likely penalties.

In all three cases they have got stung for $250 of fees plus the trivial cost of the actual songs.

What has varied is the deterrent penalty which has ranged from $100 to $180 per song. This case had it at $180 and that is because the respondent didn’t file any claim at all,  This is probably the maximum deterrent that will be charged.

The $100 is for now the minimum. However in some cases they may go even lower. None of the respondents to date have had particularly strong excuses. If someone comes forward with a defence that they did take several steps to stop any file-sharing (put a password on the wireless etc) then their deterrent fee may be reduced even further.

“There are 20 legal services in New Zealand, many of them completely free, that give people the opportunity to access music online.

“The cost of the fine would have bought the person five years’ worth of access to Spotify premium, giving them access to more than 20 million tracks playable on multiple devices.”

A reasonable point.

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Saying no to Hollywood

February 8th, 2013 at 3:00 pm by David Farrar

David Fisher at NZ Herald reports:

John Key went to meet Hollywood bosses with a briefing from officials saying studio bosses were looking for easier ways to target New Zealanders who downloaded and shared films illegally.

Officials told the Prime Minister Hollywood objected to the $25 fee it had to pay each time a notice warning against copyright infringement was issued and wanted to pay less.

Yep, they hate it. They say it should be zero or at best a few cents. They think ISPs should act as their delivery agents for no charge at all, and that they should be able to send tens of thousands of infringment notices per month via ISPs at the ISPs expense.

What they also hate is that the NZ charge may set an international precedent of reasonable reimbursement of costs for ISPs.

The briefing stated the support came through the MPAA’s New Zealand arm – the Federation Against Copyright Theft – which saw the regime as becoming a “gold standard” for similar schemes around the world. Despite the support, Mr Key was told the studios behind the MPAA did not use it because the $25 fee paid to internet service providers to send warning notices was too high.

Yep, they threw their toys out. I give RIANZ credit that they are at least using the system they lobbied for.

A recent review of the scheme kept the fee at $25 because lower costs would hurt ISPs, who were forced to pay up to $100 to send each notice. Mr Key was told the MPAA’s involvement would lead to an increase in the number of warning notices sent to people and give a “critical mass” that would bring the cost down.

Opponents of the fee change warned cheaper costs could lead to a rise in vexatious complaints.

As reported, the Government recently decided to not give in to the demands from the MPAA and kept the fee at $25. What is also not widely known is that when the scheme was set up, the (then) MED recommended the fee be only $20 and it was in fact Cabinet that increased the fee to $25.

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The first copyright filesharing decision

January 31st, 2013 at 7:57 am by David Farrar

The Copyright Tribunal has delivered its first decision under the relatively new file-sharing law. The key aspects are:

  • Infringement notices sent on 24 Nov 11, 19 Jun 12 and and 30 Jul 12.
  • Cost of songs calculated at $6.57 for three songs. Rejected RIANZ submission that you should multiply costs of songs by average number of downloads.
  • The costs to RIANZ of the three notices was $75 or $25 a notice. Determined that the account holder should pay 1/3 of the initial notice, 2/3 of second notice and 1005 of third notice so $50 of the $75 in total.
  • Account holder to pay 100% of the $200 Tribunal fee
  • A deterrent fee of $120 per infringement
  • This makes a total fine of $616.57 – pretty expensive for three songs.

Future decisions are likely to reference this one. It is likely that $600 is close to the minimum an account holder will pay if found to have infringed – unless they make the case for mitigating circumstances such as demonstrating they took steps to stop people with access to the account from file-sharing.

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Antigua vs US

January 30th, 2013 at 11:00 am by David Farrar

Stuff reports:

The United States has warned the tiny Caribbean nation of Antigua and Barbuda not to retaliate against US restrictions on internet gambling by suspending copyrights or patents, a move that would authorise the “theft” of intellectual property like movies and music.

“The United States has urged Antigua to consider solutions that would benefit its broader economy. However, Antigua has repeatedly stymied these negotiations with certain unrealistic demands,” Nkenge Harmon, a spokeswoman for the US Trade Representative’s office, said.

The strong statement came after Antigua said it would suspend US copyrights and patents, an unusual form of retaliation, unless the United States took its demands for compensation more seriously in a ruling Antigua won at the World Trade Organisation.

“The economy of Antigua and Barbuda has been devastated by the United States government’s long campaign to prevent American consumers from gambling on-line with offshore gaming operators,” Antigua’s Finance Minister Harold Lovell said in a statement.

“We once again ask … the United States of America to act in accordance with the WTO’s decisions in this matter.”

Antigua, a former British colony with few natural resources, has knocked heads with the United States since the late 1990s, when it began building an Internet gambling industry to replace jobs in its declining tourist industry.

The gambling sector at its height employed more than 4000 people and was worth more than US$3.4 billion to the country’s economy, but it has shrunk to less than 500 people because of US restrictions, the Antiguan government says.

The United States said it never intended as part of its WTO commitments to allow foreign companies to offer online gambling services. In 2007, it began a formal WTO procedure to withdraw the gambling concession and reached a compensation package with all WTO members, except Antigua.

Antigua argued in a case first brought to the WTO in 2003 that US laws barring the placing of bets across states lines by electronic means violated global trade rules.

It won a partial victory in 2005 when the WTO ruled a US law allowing only domestic companies to provide online horse-race gambling services discriminated against foreign companies.

When the United States failed to change the law, the WTO in 2007 gave Antigua the right to retaliate by waiving intellectual property rights protections on some US$21 million worth of US goods annually, which was far less than the US$3.44 billion the island country requested.

The key thing here is that Antigua won in the WTO. It is hugely disappointing that the US broke the commitments it agreed to, when it joined the WTO. Australia lost the NZ case on apples access, and they have done the right thing and now allowed access. The US should have accepted the WTO ruling. By choosing not to, they owe Antigua compensation.

If the US wants countries to sign trade agreements with them, especially ones with intellectual property requirements in them, then they need to show that they will honour the commitments they agree to. Otherwise there isn’t much incentive for other countries to conclude an agreement.

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Fair points from RIANZ

January 19th, 2013 at 11:00 am by David Farrar

I blogged a few days ago with some approval what Kim Dotcom said would end copyright piracy:

1. Create great stuff 
2. Make it easy to buy 
3. Same day worldwide release 
4. Fair price 
5. Works on any device

I said:

I basically agree with Dotcom on this. It would not end “piracy” entirely, but it would massively decrease it.

Pat Pilcher has published a response from RIANZ:

“The music industry has delivered on all five points suggested by Dotcom”

And they’ve responded to each of Kim DotCom’s 5 points with the following:

1- Create great stuff 
“Great” is obviously subjective but with legal digital services offering tens of millions of music tracks there’s surely something for everyone out there.

2- Make it easy to buy
New Zealanders have access to 20 legal digital music services, not only for buying but for on-demand and curated playback. The world leading brands in each category i-tunes, Spotify and Pandora are open for business in New Zealand.

These are available 24/7 and very easy to use. The website nztop40.co.nzprovides multiple links to the most popular international and local tracks and albums every week.

3- Same day worldwide release
The overwhelming majority of newly released music is available simultaneously worldwide. In fact due to time zone differences New Zealand is often the first country in the world to have access to new superstar releases.

4- Fair price 
Music has never been cheaper to buy or access. Some on-demand services even have a totally free option. Tracks from albums are can be purchased individually, often for under $2. Premium on-demand services are as little as $3 per week.

5- Works on any device 
Tracks and albums purchased from legal digital download services are DRM – free and all are usable across multiple devices using Android and iOS operating systems – i.e. the overwhelming majority of devices in the marketplace. Likewise on-demand services all have apps for multiple platforms and devices.

RIANZ makes the point despite this, music piracy continues unabated, and has grown every year since 2006.

It is disappointing that music piracy is at levels, when it is so easy and relatively inexpensive to buy the music online legally.  I’ve got around 380 songs purchased through itunes, and would never consider torrenting a song I can get on itunes.  People should pay for content, when they can.

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Kim Dotcom on ending piracy

January 14th, 2013 at 12:00 pm by David Farrar

Pat Pilcher writes:

Kim Dotcom has become a regular fixture on Twitter and not so long ago he posted a tweet on what he believes needs to happen if piracy is to end. As ironic as that may sound, Kim Dotcom’s logic is inescapably robust.

Here’s what his end to piracy manifesto says:

1. Create great stuff 
2. Make it easy to buy 
3. Same day worldwide release 
4. Fair price 
5. Works on any device

I basically agree with Dotcom on this. It would not end “piracy” entirely, but it would massively decrease it.

I get so annoyed when I try to buy a movie or a TV series and I can’t buy it on itunes or Amazon. It means the producers are refusing to take my money. How stupid is that?

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Chalmers on TPP

December 18th, 2012 at 3:00 pm by David Farrar

Susan Chalmers writes at the NZ Herald on the TPP:

I’m not an economist, but I do understand what a net loss or a net gain is. Most people will be familiar with the concept – at the end of the day, are you better or worse off? To figure that one out you need to know what you’ve brought in, and what you’ve paid out.

We’ve recently heard what New Zealand could bring in under the Trans Pacific Partnership – US$2.9 billion by 2025. But that figure is based on a hypothetical situation involving 21 countries, not the 11 that are negotiating. Even so, the Prime Minister recently embraced and advanced this figure.

What’s missing? Our leaders haven’t told us what the costs will be.

The biggest cost that New Zealand could sustain under the TPP would be in the intellectual property, particularly copyright. This is because the most powerful party to the negotiations – the United States – is a net exporter of copyrighted goods (movies, books, TV shows, songs, games, etc) while all other TPP parties are net importers.

The interests that drive US trade policy in copyright are Hollywood and the recording industry. They want stronger and more powerful legal rights that would bring more money to them, often at the expense of many different sectors of society and business.

I’m all for the benefits of liberalising trade with other countries. That does provide benefits. But as Susan says, we also have to be aware of the costs to New Zealand, if the TPP includes US drafted changes to our copyright laws.

The Government has rightly said that any decision on TPP will be based on whether it is a net gain to New Zealand. But again, one can only calculate a net gain if you actually calculate the costs.

Now ideally NZ holds firm and doesn’t agree to any provisions that require changes to our IP laws.

Since the Government has not run its own analysis of potential costs, perhaps we can look elsewhere for guidance. Australia is a good place to start. Like New Zealand, Australia is a net importer of copyrighted goods and wants better access to the US agricultural markets – for sugar and beef exports in particular. …

A report from the Australian Productivity Commission – the Government’s independent research and advisory body – indicated that Australia suffered a net loss under AUSFTA as a whole because of accepting the US copyright demands.

Maybe the NZ Productivity Commission could look at the the benefits to the NZ economy of balanced IP laws?

So why has our political leadership not talked about the costs of accepting the US copyright demands? For instance, the cost of paying decades more in royalties to overseas companies, losing parallel imports, not to mention all the taxpayer money to support US copyright litigation here in New Zealand.

Trade agreements are meant to liberalise trade. Banning parallel imports is putting up barriers to trade.

Regardless of the reason for our leaders not acknowledging the potential costs, it is now time to run that analysis, as any normal business would. New Zealand’s copyright negotiators have been holding the line throughout 15 TPP rounds, working to stave off these costs for the country. Let’s encourage our elected officials not only to give them some support, but to explain exactly what the country is about to commit to. Shouldn’t we know?

We should.

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15 third copyright strikes

December 12th, 2012 at 3:00 pm by David Farrar

Tom Pullar-Strecker at Stuff reports:

The first judgments under the controversial ‘SkyNet’ law that is designed to help stamp out music piracy are edging closer as the wraps come off another service, Pandora, that lets people listen to music legally online.

A Justice Ministry spokesman said the Recording Industry Association, which represents major record labels, had asked the tribunal to make awards against 15 people who the association has accused of illegally accessing music over file-sharing networks.

All 15 had received their “third strike” and could be liable for penalties running into thousands of dollars.

In four of the cases, the tribunal now had all the information it needed to begin its deliberations, the spokesman said, though no date has yet been scheduled for those to start.

None had requested to appear in front of the tribunal in person and they had instead asked for their cases to be judged on the written evidence “so they are ready to proceed and have a decision made,” the spokesman said.

A lot of people will be reading the first judgments with interest. The two major issues will be what constitutes proof of infringement, and what is an appropriate level of penalty within the bounds laid down by the law.

I don’t regard it as a bad thing that there is a simple fairly cost-effective remedy for rights holders to get sanctions against those who infringe by downloading a free copy, rather than paying for it. But the law is imperfect with its assumption of liability, so again great interest in how these first cases are resolved.

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