Copyright and International Treaties

Copyright

One of the more important paragraphs in the preamble to the Bill is this one:

"[permitted acts] are provided where activity is seen as having particular social value or in circumstances where enforcement of rights would be impractical and undesirable. New Zealand is also a party to a range of international intellectial property agreements, most notably the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights [TRIPS], which place limits on the extent to which exceptions can be made to the exclusive rights."

The importance of this is as a guide to the thinking and motivation of the people who actually wrote this Bill (most certainly not the sponsor Judith Tizard) as well as the significant constraint they are placed in by TRIPS.

TRIPS is an annex of the Marrakesh Agreement from the World Trade Organisation's Uruguay Round. It binds New Zealand, as a member, to a range of obligations including compliance with the World Intellectual Property Organisation Berne Convention for the Protection of Literary and Artistic Works. It also includes a very important clause binding exemptions to copyright law, which is the reason it is mentioned in the above quote:

Article 13 of TRIPS
"Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder."

This clause means that all copyright laws of the member states (including New Zealand) must pass the three step test:

1. exceptions to copyright must only apply in special cases; and
2. exceptions to copyright must not conflict with normal (i.e. commercial) exploitation of a worl; and
3. exceptions to copyright must not be predjudicial to the legitimate (i.e. commercial) interests of the rights holder.

This appears, at first glance, to impose significant constraints on the Government when amending copyright law. However, this is a trade agreement and treaty and must be taken in context. If a dominant partner (lets say the US for the sake of argument) allows significant exceptions to its populace, then it should and must be taken that those have passed the three step test, at least as a starting point for negotiation. By all means then, lets comply and allow our population the freedoms embodied by the US with its Fair Use provisions, the Audio Home Recording Act and TEACH Acts.

I fail to understand why my Government is proposing to allow me the worst case selection of rights, rather than fighting tooth and nail for the best possible set. I fully expect the US to do the same for their citizens and I don't expect to see them making life easier for New Zealand's exporters of primary produce any time soon, so why should we make life easier for the US's media companies?

TRIPS is not the only copyright treaty on the Government's radar either. In the 2001 MED discussion paper it was asked:

"Should New Zealand implement the requirements of the WIPO Copyright Treaty 1996 and those aspects of the WIPO Performances and Phonograms Treaty 1996 that relate to the rights of phonogram producers, and ultimately accede to those treaties? If so, what changes need to be made to the Copyright Act 1994 over and above those required by the Treaties?"

Reading these two treaties (WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty) is interesting. They, along with TRIPS, have been criticised for their lack of consideration of indigenous people, but in reality no citizens of any society are considered in these treaties. This is economic-focused law with the focus clearly on trade and the needs of large corporate entities, societies and culture get very little practical consideration.

Putting that to one side however, it is clear where aspects of the Bill are coming from and that the answer to the question asked above is a definite "yes" as far as the framing of this Bill is concerned. Both treaties have similar clauses regarding the use of TPMs and Rights Management Information:

Article 11 WIPO Copyright Treaty
Obligations concerning Technological Measures
"Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."

Article 12 WIPO Copyright Treaty
Obligations concerning Rights Management Information
"(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention:

1. to remove or alter any electronic rights management information without authority;
2. to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

(2) As used in this Article, Òrights management informationÓ means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public."

The criminal penalties attached to the clauses in the Bill are also straight out of TRIPS Article 61:

"Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale."

The tidying up of broadcasting vs communciating to the public is also driven by the treaties (including the ISP clauses which are a natural application of the footnote to article 8):

Article 8
Right of Communication to the Public

"Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them."

Footnote: Agreed statements concerning Article 8 : It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention. It is further understood that nothing in Article 8 precludes a Contracting Party from applying Article 11bis(2) .

So, what we appear to have embodied in the Bill, rather than a sophisticated piece of law aimed at positioning New Zealand to succeed in the growing field of information - the Knowledge Economy no less, is merely a parroting of international treaties designed to ensure the dominance of major trading blocks like the US and EU.

The annoying thing is that we don't have to be passive as a country. The treaty includes a number of opportunities to aggressively pursue a strong position for New Zealanders.

For example, Article 6 of the WIPO Copyright Treaty states:

Right of Distribution

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.

(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author.

Clause (2) could easily be used to justify a generic format shifting right that would apply after purchase of a legitimate copy of content, not just music. The requirement that the original be purchased protects the rights of the owner, and a restriction to personal, rather than commercial use could also reasonably apply.

As another example Articles 8 and 40 of TRIPS could easily be held as justification for a strongly worded provision prohibiting the use of zoning or other market segmentation restrictions and thereby granting an absolute right to circumvent such restrictions - one that could not be lawfully contracted out of.

Article 8 (emphasis added):

1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.

2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

Article 40 (emphasis added):

1. Members agree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology.

2. Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grantback conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member.

I'm not a lawyer nor an expert on international trade negotiations but as a citizen of New Zealand I'd like to see my Government fight a little harder for my rights rather than continuing to be a sock puppet for the US's trade agenda as pursued through intellectual property law.