Copyright (New Technologies and Performers' Rights) Amendment Bill

Copyright

Today was the day I finally got to speak to the submission on the Copyright (New Technologies and Performers' Rights) Amendment Bill before the Commerce Select Committee.

It's the first time I've done this so I was interested to see what really goes on at a Select Committee hearing for real. After having been cleared by the security people (no metal detector in use I noted) I was ushered into the meeting room at Bowen House to join the rest of folk waiting to speak. The Committee are arranged in a 'U' shape with the person(s) speaking in a row in front, and the various advisors (including a number of folk from the MED) are arranged behind. The atmosphere was formal but relaxed and polite.

I arrived to hear the Telstra folk speaking to their desire to not have Section 88 of the Act repealed. This is the section that allows retransmission of free to air broadcasts. They pointed out that in many places (particularly in Wellington) cable transmission is the only way people can get a clear signal. The Committee seemed pretty positive about their points.

They were followed by a number of others commenting on Section 226 - the TPM provisions, including a former colleague Nathan Torkington. Most folk were very negative about TPMs, one speaker gave a very compelling demonstration of the problems associated with CD-ROMs with embedded TPMs - illustrated with a CD containing the Sony Rootkit. His presentation was well received by the Committee, particularly when he pointed out that he could easily create a CD containing an TPM with an "accidental" backdoor, give it away freely, then use the backdoors to harvest unsuspecting users as SpamBots. Any attempt to remove his system would be unlawful and attract criminal penalities, and it would also be unlawful to talk about the problem if that resulted in information on circumventing his TPM being discussed. Again the Committee clearly understood the issue and were certainly testing the Motion Picture Association representative and the Sony rep on the need for such measures and how they could or should be limited.

Format shifting came up a few times, particularly in the context of the ridiculous "sunset clause" and its clear that many people have been raising the issue. Interestingly, the Chair (Gerry Brownlee) specifically mentioned the RIANZ submission that Russell Brown has commented upon - clear the committee has been made well aware of the industries view, although they were also conscious of EMI's move away from TPMs and the ambiguity that implies.

Another speaker noted the inadequacy of the educational provisions, especially with regard to caching of websites which was well received by the Committee and set the scene for my brief comments. The Committee was running seriously behind schedule so I only had time to raise the problem of using freely available web materials in courses.

The example I gave was that of preparing a lecture and wanting to include figures and diagrams from web pages in the slides. This is perfectly legal in a face to face lecture - provided I don't give a copy to the students. There is no legal way I can give those slides to students, either on paper or digitally. The licenses in New Zealand don't cover digital originals and images and diagrams are "artistic works" which cannot be copied in full. I also pointed out that providing the students with a list of URLs had a significant problem with students unlikely to bother going to get them, if they did they could end up viewing inappropriate materials (such as pornographic banner ads), and anyway the whole thing makes no economic sense as the originals were essentially provided for free.

(In hindsight it also occurs to me that the inability to give the students paper copies of the diagrams means that they can't annotate them in lectures either - forcing them to redraw things with the risk of error and the sheer stupidity of them wasting their time doing so.)

This was very well received by the Committee - one member at least was very startled and the only question was essentially a red herring - what if the material was an unauthorised copy? My response was that then we'd not use it and it was unlikely anyway - the vast majority of material was sourced from reputable places like universities. Gerry Brownlie described my submission as "falling on fertile ground" which I think is positive, we'll have to wait and see what eventuates.

One interesting conversation happened after the session when a former staff member of a tertiary instutition essentially accused me of misleading the Committee and that there really wasn't an issue with digital material from the web as Section 44(3) allowed for copying of up to 3 pages and that included the images and diagrams. There was a definite sense that I shouldn't be rocking the boat - far more important people than me were unconcerned - and I should be greatful that the current laws allow me to use a small scraping of the net.

He did have to accept that Section 44 clearly did not allow the situation I was describing to occur. The more I think about this his general point though, the more I think that it represents a dangerous complacency (I note with interest the absence of any reference to a submission on this Bill on the NZVCC website for example) and an old-fashioned understanding of e-learning and digital information use in education.

The real problems I can see with depending on the current version of Section 44 include:

• You can only copy three pages - setting aside what a "page" is in a digital context (is that A4 or US Letter? How about A3?), what if the original is ten pages and I want my students to read all of it?
• Also, although Section 44(3) says three pages, Section 44(4) says hang on - if that's the entire document then you're only allowed 50 percent of it. In other words if we want to share short web pages, we can only include half of them.
• If we just want images or diagrams we can copy them but we have to remember to get some of the surrounding text - how much or little before a judge would say we were abusing the provision remains to be tested in court - and I don't want any colleague of mine faced with being a test case.
• This is all hopelessly caught up in historical ways of doing things. For a start - what if the entire "page" is a piece of Flash multimedia? What if everything is images - no separate text?
• Finally, even if there is a technicality by which teachers can slip through the cracks here, what's the guarantee that they'll always do so? It would be very easy to create a slide that snuck past the provisions of the Act originally, but after the passing of time and subsequent editing became an unlawful infringing copy - its just too risky.

Fundamentally the idea that we should just keep doing manifestly illegal acts because we've always been able to do them without prosecution is wrongheaded. We can't run sensible education programmes for staff and students on intellectual property issues that are filled with statements like "this is technically illegal but don't worry they've never prosecuted". Similarly, playing technical games with material surrounding images and diagrams may appeal to lawyers but to me it's dishonest and encouraging others to play such games destroys the reputations of those who do so.

There's also the problem that TPMs can only be circumvented to exercise permitted acts - and breaking those provisions is a criminal act. If people break any TPM (including the idiotic ones used in PDFs for example) to copy digital originals following the logic above they could end up with a criminal conviction.

The law should state clearly what people can and can't do and surely the whole point of this exercise is to get a law that says we can do the entirely reasonable things we need to do to teach. Rather than playing semantic games and hiding our heads in the sand we should be fixing things and I'm disappointed to hear that some in the sector can't see that.