Deloitte Access Economics has released a report commissioned by Google Copyright in the Digital Age An economic assessment of fair use in New Zealand
It claims that more flexible copyright laws could drive greater economic growth and enable New Zealand to capitalise on the shift to a digital economy.
Release of the report, at InternetNZ’s NetHui event, follows one from InternetNZ last month that called for changes to copyright legislation, saying the Internet had opened up new opportunities for creative New Zealanders, and changes were needed to enable them to exploit these opportunities.
New Zealand copyright law currently specifies a number of "fair dealing" exceptions when use of copyright material is permissible.
The report argues that this regime should be relaxed and that the ‘fair dealing’ regime should be by a ‘fair use’ regime that would allow “uses that are socially beneficial, transform the work and do not adversely affect the market for the original material.”
It distinguishes fair use from fair dealing by saying “Fair use provides a more flexible framework that provides a principles-based test to see if a use is infringing or not. While fair dealing aims to promote creativity by specifying permissible uses in legislation, fair use sets a standard that can be applied to any potential use of copyright material.”
Deloitte Access Economics Partner Linda Meade argues that New Zealand will find it harder achieve the full productivity dividend of the digital age without a more flexible approach to copyright exceptions, and this would bring the country into line with leading innovator nations.
“The United States, Israel, South Korea and Singapore are leaders when it comes to digital innovation, and therefore major beneficiaries. The United Kingdom and Canada have also recently increased flexibility in their copyright exceptions," she said.
The report acknowledges that a relaxation of copyright protections could reduce the incomes of copyright holders, and reduce the incentive for the creation of new work but claims: “There are greater opportunities for rights holders to themselves rely on more flexible exceptions as part of remix and other transformative works.” and that “Potential uncertainty during any transition can be minimised based on international experience and the right policy guidance.”
In a section headed: “How fair use and fair dealing impact the incentive to supply new works,” it states, in bold, the claim that
“…the main effect of a move from fair dealing to fair use is not to alter the balance between creating and maintaining incentives for innovation and the production of creative works and maintaining incentives for its efficient use, but to allow that balance to evolve as technology and applications develop over time.”
However ‘evolution over time’ would inevitably result in ‘alteration.’
In support of its arguments the report cites “a [conclusion] reached in Australia by their Law Reform Commission and Productivity Commission and Ernst & Young, namely a transition to fair use would have net benefits, enabling free expression and innovation, encouraging new forms of creative endeavour, opening up access to research and published information, and providing a more flexible and responsive legal regime…”
A press release announcing publication of the report said it “provides input into the New Zealand Government’s review of the Copyright Act, which aims to assess how well the Act is performing against its objectives.”
However the report contains a disclaimer: “This report is prepared solely for the use of Google. This report is not intended to and should not be used or relied upon by anyone else and we accept no duty of care to any other person or entity.”