Submission on Copyright (New Technologies and Performer’s Rights) Bill

For your interest here is my submission on this new bill. I've never submitted to Parliament before and I've only had a couple of hours to put this together. Should be interesting. And no, I'm not going to present personally.

If anyone else is interested in submitting you can do it online but you have until the end of Friday 9 March...

Submission on Copyright (New Technologies and Performer’s Rights) Bill

By Edward Sargisson

Introduction To Author

In 2001, I graduated from the University of Auckland with a Conjoint Bachelor of Science in Computer Science and Bachelor of Commerce in Operations Management. Since then I have been employed by large firms as an IT Consultant. I have also been a performer as I am a previous member of both Auckland and Wellington Cathedral Choirs and Musica Sacra. I spent a total of ten years singing English Cathedral Music and have sung on a number of recordings.

This bill is similar US Digital Millennium Copyright Act and therefore many of the criticisms of that act can be applied to this bill.

Use of Technological Protection Mechanism to build competitive advantage against public interest

With reference to S89 inserting sections 226 to 226I

Opposed

It is becoming common to use Digital Rights Management (DRM) to build products and services that provide a lock-in for the vendor. Instead of relying on producing better and cheaper services for customers such firms, to an extent, use DRM to artificially protect their profit at the expense of customers.

An example of this is the Apple iPod portable music player. The iPod can only have music loaded onto the device by the iTunes software produced by Apple. While iTunes can load freely available music formats (such as MP3) the only DRM supported is that provided by Apple. Therefore the only music that can be purchased from Apple’s iTunes Internet store can be loaded onto an iPod.

The effect of DRM in this case is that Apple owns the means to both sell, load and play music for the majority of the market and Apple certainly does not make this market available to competitors. This competitive advantage is, in part, protected by the DMCA mentioned above.

It should be noted that a large part of Apple’s success with the iPod is the combination of the usability of the device and Apple’s success in negotiating with record companies for the right to sell their music online. Part of the reason the record companies were happy with this was the protection of the DMCA. However, at least one of these record companies[1] is now bemoaning the effect of these DRM protections which indicates that the record companies may not have needed DRM at the start.

Secondly, the anti-TPM provisions can be used to unfairly protect competition in other markets. By claiming that some feature of their product is a TPM companies can attempt to protect others from making their own version of that product.

An example of this is the printer maker, Lexmark, who have attempted to protect their market in producing ink cartridges by claiming they are protected under the DMCA[2]. However, while Lexmark have lost this case[3] this would have been very expensive for the defendant.

Effect of TPM Provisions on artistic advancement

The DMCA (and similar acts in the US) are based on a proposition that works spring fully formed into an artists mind with no reference to any previous works. From that proposition it then follows that these works should be protected to ensure the income of the artist and encourage future works.

However, the creation of works, both artistic and non-artistic, does not work in this way. It is very much true that, to quote Newton, “If I have seen further [than certain other men] it is by standing upon the shoulders of giants.”[4] The process of creation is reliant on what has gone before.

In recent times, more explicit re-use of works is being undertaken by consumers and then re-published onto the Internet. These are often called mash-ups where existing works are modified, have new lyrics added, etc.

The TPM provisions in this bill will have the effect of removing the ability for consumers to undertake this. The only way to work with music that has been purchased is with the permission of the copyright holder. Permission that is very unlikely to be forthcoming.

Chilling effect on free speech

With reference to S53 inserting new section 92C(2)(a)(ii)

Opposed

This very small section has the potential to have a very large effect on free speech in this country. This section allows anyone to allege copyright infringement and thereby have a publication removed from an Internet Service Provider(ISP).

For example, a person may publish a website criticising some firm. Should that website contain any element with even the appearance of infringing the firm’s copyright (for example a parodied logo) then the firm can ask the ISP that hosts that site to remove the site. There is no provision in this bill to allow the original publisher of the site to contest this takedown short of legal action. Such action would be expensive and hence the speech would be chilled.

This provision is similar to the use of the takedown notice provisions of the US Digital Millennium Copyright Act (DMCA). A large number of examples of this can be found at the Chilling Effects Clearinghouse[5], “A joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics.” A useful example is US National Pork Board shutting down a parody website[6].

Copying sound recording for private and domestic use

With reference to S44 inserting new section 81A

Changes Recommended

This section, without subsections (2) and (3), would ordinarily be a good and useful provision. It is now common practice for users to purchase a CD and then make copies on their computer (for use at work when carrying a stack of CDs is impractical) and/or on to a portable media device. These copies are generally for personal use and allow the user to listen to their music in the way they desire. Without this provision, the music companies will attempt to sell the same music to consumers several times; once for each format the user might desire. Users should be able to buy a piece of music once and then have it whichever format suits their use.

However, subsection (2) completely removes the effect of subsection (1). The music companies will simply use this subsection to return things to way they were.

It is recommended that subsection (2) be removed.

Potentially subsection (3) should also be removed in order to make this consumer protection permanent. However, Parliament may continue to desire that this section be temporary.

---

[1] Chicago Sun-Times, “Report: EMI in talks with online retailers to possibly sell MP3s without copy protection”, 09/02/2007, Available online at http://www.suntimes.com/technology/250463,emi020907.article

[2] CNET News.Com, “Lexmark invokes DMCA in toner suit”, 08/01/2003, Available online at http://news.com.com/2100-1023-979791.html

[3] Electronic Freedom Foundation, “EFF: Lexmark v. Static Control Case Archive”, Available online at http://www.eff.org/legal/cases/Lexmark_v_Static_Control/

[4] The Columbia World of Quotations, Available online at http://www.bartleby.com/66/18/41418.html

[5] www.chillingeffects.org

[6] Chilling Effects Clearinghouse, “Pork Board has a cow over slogan parody”, 30/01/2007, Available online at http://www.chillingeffects.org/trademark/notice.cgi?NoticeID=6418