Digital copyright - the world starts to worry

Stephen Bell looks back at the copyright debate

ICT journalism in New Zealand sometimes seems to be in a small sector of a small geographical corner; what we say is important to us and our local industry, but is given little attention by the rest of New Zealand, or the world.

However, proposed modifications to copyright law over the past five years turned the eyes of the general populace to the internet – as the subject of news stories rather than simply the medium of access – particularly when the public at large were confronted with the possibility that they could lose the online access which had become such an essential feature of many of their lives.

Concern clicked up a notch locally when discussion of New Zealand’s participation in international treaties raised the possibility that internet users would have their internet accounts suspended albeit temporarily, if unable to defend themselves convincingly against an accusation of illegal access to copyrighted material. For the first time, there was widespread public discussion of whether access to the internet qualified as a human right.

The police raid on Kim Dotcom’s home early last year and the abrupt shutdown of his Megaupload file-sharing site turned the eyes of the world on New Zealand and its internet-law affairs.

A well-organised campaign by the ICT industry and its customers, surrounded by a general atmosphere of public protest led to significant amelioration of intellectual-property provisions once considered for inclusion in the Anti-Counterfeiting Trade Agreement (ACTA). We have had a significant change to our copyright law in the form of the Copyright (Infringing File Sharing) Act, but managed to stare down the threat to cut users off from the internet.

New Zealanders’ relief after that partial victory quickly turned to fresh concern when the proposed terms of the Trans-Pacific Partnership Agreement seemed likely to include similar terms to those batted away in ACTA.

The ongoing and multifaceted copyright story hits a significant number of hot-buttons – from New Zealanders’ concern for freedom to be entertained as they wish, to the question of autonomy for our laws in the face of pressure from the US government and Hollywood and the spectre of a handicap to newer local industries in movies and music at the expense of favourable terms for NZ’s traditionally traded commodities.

Computerworld has been covering the various strands of the issue for a decade. In 2003, then deputy editor Mark Broatch raised concern in a column on prospects of a US free-trade agreement, entitled “Trading Away”.

“Free trade has benefits, to economies and individual manufacturers and exporters, but there are, well, trade-offs,” Broatch wrote.

“To sign a deal with the US, the trade-off of note to IT lies in intellectual property practices. The US in particular … has been keen on strengthening copyright protections and increasing the term for which they apply, its own much-criticised Digital Millennium Copyright Act being the ultimate vehicle.”

In August 2004 this reporter tackled then Culture and Heritage Minister Judith Tizard on the question of a trade-off of intellectual-property-based industries against traditional exports in pursuit of a possible free-trade agreement with the US. “MED will be working with other agencies to coordinate New Zealand’s regulatory [environment] with those of our major trading partners,” a statement on the then Labour-led government’s strategic priorities had said.

“Basically what we’re saying is that we want to have as much market integration as possible,” Tizard told Computerworld. “But we should only look at moving towards the same rules and regulations where it’s in New Zealand’s interest.”

On copyright law specifically, she said: “We probably don’t want to move too far ahead of anyone, but if there are issues that are in NZ’s interest, we will fight hard to make sure we maintain those.

“We’ve made a commitment to go back to users and owners [of copyright material], so any legislation will be widely debated,” Tizard promised.

The matter of copyright came to a head in 2008, in the dying days of the Labour-led government, when the Copyright (New Technologies) Amendment Bill was tabled. This imposed requirements on internet service providers to police copyright infringement and, in Section 92A, required ISPs to have a policy of terminating the internet accounts of persistent offenders.

The Bill was passed, but Section 92A was held in abeyance, to be eventually repealed by the Copyright (Infringing File Sharing) Act in 2011. There was still discontent among ISPs at having to process complaints of infringement and issue notices to the alleged offender.

Tizard caused another minor stir when at an unrelated event in 2008 (the launch of former Computerworld reporter Keith Newman’s book on NZ internet history) she said internet access could possibly be considered a human right.

Some attendees at the event called Computerworld anxious to know if we had recorded audio of Tizard’s words (we had).

The first hints of ACTA were meanwhile emerging, with Wikileaks’ disclosure of a discussion paper towards such a treaty. “There will be more than one opportunity for public comment on the agreement’s provisions,” said NZ negotiators George Wardle of the Ministry of Economic Development in June 2008. The government did, indeed, request public submissions, but at that date the negotiations were still at an early stage and the detail was still secret.

Further leaks of the ACTA text and limited official release in April 2009 sparked concern that the account termination provision – referred to in a footnote on a leaked draft – was on the table.

The protest movement culminated in a conference, known as PublicACTA, held in Wellington in April 2010, shortly before the round of ACTA negotiations in that city. PublicACTA produced the Wellington Declaration, which analysed the detrimental effects of the draft treaty and made a plea for opening up of the secret negotiations and draft texts.

Drafts were eventually released for proper debate and ACTA was signed without the internet termination clause and some of the other contentious provisions.

On the New Zealand front, the National-led government tabled the Copyright (Infringing File Sharing) Bill, which put in place a three-stage system of notices to offenders, culminating in a hearing before the Copyright Tribunal and a maximum fine of $15,000.

The Labour opposition agreed to compromise; passing, but holding in suspension, the internet cut-off provision. The final debate was widely commented on as demonstrating the lack of knowledge of the internet by some MPs. National MP Jonathan Young compared the internet to the insidious and powerful Skynet computer system in the Terminator movie, earning the legislation an enduring nickname as “The Skynet law”.

In the event, there have so far been few cases taken through the full three strikes and resulting fines of less than four figures.

When the Trans-Pacific Partnership Agreement was mooted (and again some drafts were leaked) it became clear that US negotiators were taking another shot at inserting provisions disquietingly similar to some they had failed to push into ACTA. TPPA negotiators assiduously denied any link between the two in April 2010 but comments in our online article showed considerable scepticism on the part of Computerworld readers.

In November 2011 Trade Minister Tim Groser sought to dismiss fears of a re-litigation of ACTA; but subsequent leaks of draft position documents reinforced public wariness.

They sparked further fears that even temporary copies of data in caches, an integral feature of the way the internet works, might be subject to regulation.

Local interested parties have kept a presence and made their opinions felt at stakeholder events in New Zealand and overseas.

TPPA involves an increased list of countries, now including the Japanese – whom local IP lawyer Rick Shera characterised as “ardent intellectual-property maximalists”. Japan has been admitted while negotiations continue, despite Groser’s insistence in 2011 that the then negotiating parties would firmly decide the “dress-code” before opening the door to others.

Meanwhile, a growing body of opinion internationally favours a complete re-examination of the principles of copyright law to cope with a digital age. This includes InternetNZ which, in a “discussion starter” for the 2011 election, commented: “All stakeholders stand to benefit from a 21st century copyright framework that supports the creative industries without handicapping the continued evolution of societal benefit.

“The Government should initiate an evidence-based review of copyright law, starting from first principles, which resets the balance of rights for an internet-enabled world,” it adds.

We’re waiting.

*This article is part of a series looking back at major issues covered by Computerworld, to mark the final print edition, published Monday July 1, 2013.

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