Ti Point Tork

Submission on NZ IP law and a free trade agreement with USA

SUBMISSION ON THE TRANSPACIFIC STRATEGIC ECONOMIC PARTNERSHIP AGREEMENT NEGOTIATIONS WITH THE UNITED STATES

To: Ministry of Foreign Affairs & Trade

Introduction

This Submission is from Nathan Torkington, an author, musician, and software professional whose address is […].

Summary

I strongly oppose any proposals to extend the term of copyright, entrench digital rights management, assign investigation or enforcement powers to rights holders beyond those already in law, or otherwise use copyright law against consumers and artists. I also strongly oppose any interference with parallel importing.

Submission

New Zealand technology companies and New Zealand artists are all creative professionals attempting to sell their work in the world’s marketplace. To be successful these creative industries need:

1. Open and ready access to markets overseas.
2. Open and ready access to the commons of production.
3. As little regulation and interference in possible in their production and distribution activities.

I support extending the P4 agreement to other nations. The more markets we can freely compete in, the better our local software, music, radio, television, and film industries will become. Competition forces local producers and distributors to improve the quality of their product and their distribution channels. New Zealanders have benefited from parallel importing, for example, as competition between distributors lowers the middlemen’s price.

Both software and the arts have commons, a set of works that new works can draw upon. In software, it’s open source. In the arts, it’s the public domain. It’s important to keep both wellsprings available and growing because the commons lower production costs. For example, a recent report found that the Linux operating system was worth US$10.8B and supports a US$25B ecosystem. As a folk musician, I draw heavily upon the commons of American folk music. Even the modern copyrighted songs in my genre are heavily influenced by the works that have gone before and frequently feature ‘quotes” or reuse traditional chord patterns and melodies.

The borders around the commons of software and arts are drawn by IP law, particularly copyright and patent law. “Strengthening” IP law consists of encroaching upon the commons. For example, extending copyright terms keeps works out of the commons that otherwise would have been available for reuse and repurpose. Extending copyright to cover previously uncopyrighted things (e.g., databases of fact) similarly turns previously public property into private property. As a software professional, I strongly oppose software patents in principle as well as in practice: they are rarely awarded for originality, and it has not been shown that their costs in retarded innovation justify whatever economic benefits they may bring. Even Microsoft, the most successful software company ever, has never been the aggressor in a software patent lawsuit–only the recipient.

Technically it is possible to reuse and repurpose the private property, but generally it requires the permission of the copyright holder. One exception is the common act of recording a “cover” of a song, which is governed by a compulsory license (meaning that Gloria Gaynor doesn’t get to prevent my bluegrass band from covering “I Will Survive” but we have to make a small payment for the privilege). However, most media and most acts of reuse and repurpose aren’t covered by compulsory licenses.

Extending copyright terms locks up these works to the point where authors can rarely be found. The problem of these “Orphan Works” is well recognized in IP circles (e.g., Google Print found 75% of the books they scanned were in copyright but the publisher and authors were unreachable), and the US Copyright Office has recently attempted to find a solution to the problem but it is still burdensome to the reuser. Extending copyright terms increases the number of these Orphan Works without providing a solution to a large and growing problem. It is unequivocably a bad idea.

On the subject of regulation and interference, I point particularly to Digital Rights Management (DRM, known in NZ law as Technical Protection Measures, TPM). DRM/TPM prevent reverse engineering, something that has traditionally been permitted as it is necessary to produce compatible products. Copyright law has traditionally respected the need for competition in the technology around the copyright work, because without such competition the artist is at the whims of the owner of the monopoly format. A recent change to NZ Copyright law has added support for DRM/TPMs without a reverse engineering clause, but there is hope in the technology community that this can be revisited. I do not want to see DRM/TPMs entrenched in trade agreements where a revisit of NZ law could not free it.

Another unnecessary burden of regulation and interference is the takedown provisions in NZ and US law. As a copyright rights holder (author of “Perl Cookbook”, composer of several pieces of music) I have measures enough under the Act to seek recompense if my book is pirated. In fact, my book is heavily pirated. My publishers send out frequent Cease and Desist letters. They do not need the ability to turn off the Internet access of infringers, and do not want that ability. I believe these measures are unnecessary and furthermore place a high financial burden on ISPs and web site owners. These financial burdens make New Zealand ISPs and web site owners less able to compete internationally. I do not wish to see them in an international trade agreement.

For these reasons, I strongly oppose any proposals to extend the term of copyright, entrench digital rights management, assign investigation or enforcement powers to rights holders beyond those already in law, or otherwise use copyright law against consumers and artists. I also strongly oppose any interference with parallel importing.

[for another submission, see maetl’s]