InternetNZ Copyright Workshop
Hopefully those of you in Auckland are attending the InternetNZ workshop on the BIll. The Wellington one went well, although there was a certain sense of preaching to the converted - there was very little evidence of content providers defending the line being followed by the Minstry of Economic Development policy analysts.
Bronwyn Turley, Manager Intellectual Property Policy for MED started the meat of the proceedings presenting the policy background to the amendment bill. It was good to have the MED folk present but also somewhat frustrating as they were clear that they couldn't really engage in any discussion about the Bill. MED are providing the Commerce Select committee with policy advice in response to submissions so they were presumably attending in order to get an advance preview of the issues.
Sadly, it was not an impressive presentation. From some of her remarks its clear that the MED staff involved in this Bill have changed over the seven years its taken to get here and much of the background behind the drafting has been lost. Throughout the presentation she repeatedly noted that the MED position was defined by economic considerations. The clearest example of which was in relation to the music format shifting exception, when asked to explain why it had a sunset clause of two years, the answer was essentially "so if someone works out a way of making money from format shifting we can remove the exception easily."
Given how pathetic the education exceptions proposed in the Bill are it was also frustrating to hear her state that they form an important part of the public interest balance in the act. Evidently MED has fallen for the CLL misinformation hook, line and sinker.
Jordan Carter followed with an overview of the draft submission being created by InternetNZ. Understandably, its focusing on the ISP provisions particularly but with a range of other comments generally consistent with my submission. As with everyone else during the day, the TPM provisions were not well regarded, although it was clear that we are stuck with them and now we need to ensure that circumvention is strongly protected.
Jordan's presentation was complemented by that of Rick Shera, the InternetNZ lawyer who spoke on an alternative to the DMCA-style Notice and Takedown provisions in the Bill. Called Notice and Notice, it was proposed during recent Canadian copyright legislation reviews. Michael Geist has a good overview of the idea in his blog. There was considerable support for this approach at the meeting and I'll certainly be indicating my support for it.
Brent McAnulty from Telecom gave an interesting view of the Bill from the perspective of one of the largest ISPs, including his concern that the definition does not include hosting - simply communication.
Lunch was excellent (thanks InternetNZ) and was followed by Professor Clark Thomborson from Auckland University who used Lawrence Lessig's control model to discuss how TPMs attempt to manipulate people by moving possible acts into the hard and expensive quadrant. Nathan Torkington, a colleague from my distant past and well known for his work with O'Reilly spoke in some detail about the TPM provisions, clearly illustrating the very significant flaws in the legislation. Hopefully the MED folk were paying attention during this.
Barrister Clive Elliot presented a brief overview of the new permitted acts in the Bill, covering the Format and Time shifting acts in particular. This was an interesting illustration of how a lawyer can imply a lot without actually saying it. His scepticism about the workability of these provisions was readily apparent. Discussion during the panel that followed revolved around the pragmatic view of most attendees that regardless of what idiotic clauses were included in the Bill, the general public will continue to shift all forms of media in format, time and space, and that any attempt to prevent this was doomed.
The day finished with a brief panel discussion which allowed some of these points and others raised during the day to be revisited. I focussed particularly on the serious limitations faced by educational institutions using digital materials, hopefully that will get past the CLL whitewash.
As an aside I was reading the CLL submission to the MED Discussion Paper and was interested to find this paragraph:
"It is no longer true that contractual licensing arrangements for digital materials are not available. CLL has recently offered to Universities a licence which permits them to make material available electronically under similar terms to those in their reprographic licence."
This may be true in the strictest sense but is a seriously deceptive statement. The license only allows distribution electronically of material sourced from paper - absolutely no use of material from the Internet is permitted. Hopefully the MED folk understand the consequences - again I have my doubts.
The final reality check of the day was provided by Auckland University Law Professor Owen Morgan who (as well as strongly arguing for a complete review of the Copyright Act rather than the current piecemeal approach) pointed out that as soon as a Free Trade Agreement is on the table from the US the MED and Government will toss all our copyright freedoms away in the (misguided and deluded in my opinion) belief that it will get us better trade access.
Still, it was a good day and I hope the folk in Auckland are having a similarly interesting day - thanks to InternetNZ for running the workshop and for inviting me to attend.