Today I talked on Radio New Zealand National about digital copyright, and how Parliament could have decided to make iPods legal but now apparently isn’t going to.
The essential point here is that copyright is a form of monopoly granted by government to boost innovation, almost a property right, and that copyright holders will naturally lobby government to have their interests expanded so the worth of their property right increases. That doesn’t make it right. It’s all the rest of us who pay the price, and the continual expansion of copyright risks our whole culture and technology since everything original we do relies on work done by others.
Below the fold are my speaking notes for the radio, which I nearly stuck to, with as always some interesting links at the bottom.
Q: Colin Jackson joins us now. He’s our resident technology guide. The rise of digital technology and the Internet have had a huge effect on the way we live – how have they changed our notions of copyright?
A: Not enough, is the answer. Or rather, they have coincided with a massive expansion of copyright.
Q: What do you mean?
A: There’s quite a few examples. Copyright terms have increased, for instance. In 1998, the US Congress extended copyright from life plus 50 years to life plus 70, or to 120 years if the copyright is owned by a company, and almost all lucrative copyrights are owned by companies. Copyright, remember, is a government-enforced monopoly on copying creative works, and the justification for it is that it is necessary to provide incentives to people to innovate. But that time extension applied to all works in copyright at the time so it was retrospective – it had nothing to do with the innovation for those authors. It had much more to do with Mickey Mouse being about to come out of copyright. Most people saw it as an act of corporate welfare. The European Union did something similar, but it went even further and rejuvenated copyrights that had already expired.
Q: How else has copyright been expanded?
A: There have been restrictions placed on whole technologies because they might be used for breaking copyright. The recent examples are around CDs and MP3s, but that’s not new – for instance, when home video machines came out they were the subject of intense pressure from Hollywood which was afraid they would be used to copy films. The top Hollywood lobbyist of the time famously said that home video machines were as dangerous to copyright as the Boston Strangler was to a woman alone in her home. That particular piece of hyperbole proved too much even for Congress and home video machines were permitted. They proved, of course, wildly popular and their descendants are in just about every home.
If Hollywood had succeeded in suppressing the video we wouldn’t have had home video cameras, DVD players, hard drive recorders, My Sky or YouTube. You would have watched TV when the TV company wanted you to, and whatever they wanted to show you. You wouldn’t have had the opportunity to make your own video, and video no the Internet would never had happened. Hollywood also wouldn’t have got the home videotape sales and rental business which has made it more money than cinema releases in recent years. The point here is that killing off innovative products and ideas has sweeping and potentially unintended consequences.
Our technology and our culture move forward from generation to generation by building on what has gone before. Isaac Newton – probably the greatest scientist of modern times, said that, if he had seen further than other men, it was because he was standing on the shoulders of giants. Walt Disney, for instance, recycled existing ideas for all his famous films. Now Hollywood and the music industry want to lock their outputs up so no-one else has the opportunity to recycle them. We are at risk here of our generation effectively stealing our children’s cultural and technological birthright.
Now we have digital technology and the Internet, the music industry and Hollywood are again seeing the potential for copyright infringement as a threat and trying to control the technology to prevent it.
Q: Is that the story with file sharing?
A: I’ve talked about file sharing before. It’s a technology that lets people distribute files around the Internet. There’s nothing inherently copyright-infringing about that. But some people have been using to share copyrighted files with other across the Net, and that has caused the music industry some grief. The music industry bodies have been suing people in other countries who they said were sharing copyrighted music files.
The music industry is trying to force the IT and consumer electronics industries to implement restrictive technologies in all their new machines. You are seeing that happening with Microsoft Vista, which tries to figure out whether you are allowed to play any movie files you might have and fuzzes them up if it’s not sure. They want all equipment to have this kind of protection for their content – you even hear music execs talking about ‘the analogue hole’, meaning that they want somehow to retro fit all this into old pre-digital machines.
The effect is that another industry is being suppressed – just like the home video market nearly got squashed – Hollywood and the big 4 music companies, who own all the music copyrights, are telling an industry ten times its size how to go about its business under threat of more restrictive legislation from Congress. Who knows what we are going to miss out on as a result of this?
Q: You are talking about US legislation here – what is the situation in New Zealand?
A: Our law is in some ways more restrictive than US law. We don’t have the crucial balancing provision in US law, a concept called “fair use”, which basically says that if you have bought access to a song or movie or book or what-have-you, you can record that in to some other medium so long as its for personal use. So, in the US, recording a CD you own onto a cassette to play in the car is perfectly legal. So is copying a DVD you own into your computer for playing on a plane, say. It’s all fine in the US so long as you aren’t doing it to sell copies, or give them away. New Zealand law doesn’t have that crucial concept. Companies here can set any licence terms they wish. And, we are changing our copyright law right now to add further restrictions. A bill came out before Christmas and it has just been through Select Committee. It implements many of the harsher restrictions demanded by the music and film companies; things which suppress innovation and damage all of our experiences on our computers and on the Internet, without implementing the balancing “fair use” provisions which would make them more tolerable. For instance, the Bill is supposed to make all our iPods suddenly legal by permitting you to copy your CDs into iTunes – it’s never been legal here, because we don’t have fair use. It’s always been legal in the US, if it hadn’t been, we’d never have had iPods and MP3 players.
The Select Committee could have chosen to have made our iPods unconditionally legal like they are in the US. The draft Bill didn’t, but the Select Committee was given lots of feedback on the matter and could have chosen to do it here. But they didn’t – they listened to the music industry telling them that it would destroy the music business to let New Zealanders legally have access to the same things and Americans.
Q: I thought the Copyright Bill does make iPods legal?
A: The Select Committee said it did – and people pointed out in submissions that the bill contains a big fat exception that CD companies only need to opt out, whether by a sticker on the front of the CD saying no iPods, or a piece of impenetrable legalese inside which means the same thing to a lawyer. Lots of people told the Select Committee this, but it decided that it was far too dangerous to remove this provision and make New Zealanders’ iPod’s unconditionally legal just like they are in the US.
Q: Surely the point of this is to ensure that musicians get paid for their work?
A: That’s what the music industry would like you to believe. They regularly parade musicians in front of politicians, saying: Don’t let them steal my music. In fact the Select Committee says in its report that its persuaded that it would be a bad thing to force the music industry to make your iPod legal. The fact that they are legal in the States apparently isn’t the point – making it legal in little old New Zealand will bring the house down.
We should just examine what has been said about New Zealand artists recently. The last time this blew up in the press, the local representative of the music companies went to the Select Committee and said that Bic Runga had to get a second job because people were recording her CDs to their iPods. Bic herself went on her blog the next day and said that was rubbish, but the Select Committee obviously doesn’t read Bic’s blog.
Whether musicians get paid for their work has very little to do with whether New Zealanders are legally allowed to copy music to their iPods. Another example would be Mike Hodgson of New Zealand band Pitch Black. He doesn’t want people to infringe his copyright either – who would – but he doesn’t believe in trying to suppress the technology he uses to make his music, or that his listeners use to enjoy it! He’s also well aware that some people have been introduced to his music through copied CDs and similar. And he seems to be making adequate amounts of money, or so he told me.
Q: Are there other things in the Copyright Bill?
A: Yes, lots – some of it good, or at least better than the original Bill, but still some things that are really wrong. For instance, if someone complains to your Internet Service Provider that you are infringing copyright on your web page, that ISP faces enormous liability if it doesn’t take your web page down directly, or in some cases if it doesn’t just cut off your Internet connection. That’s the way things are done in the US, and those of us who submitted to the Select Committee showed them a much better model, the one which operates in Canada, in which you as the web page owner would have some time to argue your case that you weren’t infringing copyright before it was taken down. That’s a really bad call by the Select Committee because it means big companies can just heavy people without listening to their side of things.
And that kind of ugly behaviour happens a lot overseas. In the US, the music industry sues people all the time for using peer to peer file sharing to infringe their copyrights. The industry has done unconscionable things there like suing children – not by accident, either, because it made some of them front up on a TV advert to confess their crimes – and suing people who don’t even own computers. They are fighting a ruling at the moment that they have to pay the costs of someone they dragged through the courts and who doesn’t even use the Internet. It’s hard to see how the music industry could generate worse publicity for itself. A good thing our Bill has done is that it has tried to put in a penalty regime for this kind of thing – vexatious or reckless prosecution that is – but the burden of proof looks pretty high and I wonder whether it will be any real use.
Q: So the New Zealand Copyright Bill – good or bad?
A: A great leap backward. It’s selling our children’s cultural birthright to a few companies who are good at lobbying.
Testimony of US Film lobby to Congress in 1982 that home video would destroy the movie industry.
Reactions to the New Zealand music industry body’s claims that digital downloads will destroy local music.
The report of the Select Committee about the Copyright Bill.
A report about a case in which the music industry sued someone even though it knew they were innocent.