Why New Zealand should withdraw from the secret and anti-democratic process around the Anti-Counterfeiting Trade Agreement (ACTA) treaty negotiations.

Summary

• New technology is creating challenges to copyright and therefore the content industry.
• Our copyright laws will need to change in a way that meets the requirements of everyone.
• The ACTA process is trying to use a secretive and undemocratic process to change our copyright laws to satisfy one sector.
• The New Zealand government should withdraw from the ACTA negotiations and keep to treaties that can be publicly discussed.

The Creative Cornucopia

We live in an age of unparalleled creativity. There are more people than ever before and these people are writing more books, creating more music and making more movies than one person could ever dream of keeping up with. There is an industry dedicated to taking these creative goods, packaging them up into convenient products and distributing them cheaply to people around the world. It’s a great time to be a reader, to be a fan of music, to enjoy going to the movies.

The industry around all this activity is built on copyright. We’ve struck a deal in which we give creators the exclusive rights to receive the benefits of their creation in the hope that this will encourage them (and others) to create more. Once the rights have expired (originally 14 years, now for the author’s life plus 50 years), the works pass into the public domain and may be freely copied by all.

Challenges to Copyright

The computer age has given us new tools to work with content. Once something can be turned into digital data it can be copied perfectly, often at no cost, again and again. This has made distribution easier for the content industry but has also made it easier for people to reproduce creative works without the permission of the rights holders. Copying of music appears to be widespread, increased Internet capacity has led to movies and TV being copied too, and the rise of the ebook reader will surely lead to more unauthorised copying of books. It is telling that many people see nothing wrong with downloading unauthorised music.

The content industry sees people taking their work without paying and, quite understandably, they want it stopped.

New technology has always been a challenge to established industries. The content industry argued that recorded music would put the jobbing musician out of work (which it did) and that the home video recorder would be the death of the movie industry (which it wasn’t). The Internet and digital technology is probably the biggest challenge to the content industry since it was created by the new technology of the printing press in the 15th century.

The New Copyright Deal

These new capabilities have already led us to make some changes to our copyright laws. The 2008 changes to the Copyright Act finally allowed people to legally take the music they had bought on CD and transfer it to their portable music player. We’re probably going to have to make more changes in the future – for reasons that already seem archaic, the 2008 changes still don’t allow people to legally transfer a movie from a DVD to their portable video player.

Because the Internet and digital information is such a fundamental challenge to the way we currently use and think about content, the changes may have to be significant. These changes are going to have to reflect the needs of creators, consumers and distributors, especially as the digital age has given us all the ability to create, consume and distribute content. We’re going to need a new copyright deal, one that reflects the new realities in the rights that we give and the laws that we use to control those rights.

Process of Developing Law

The process of developing these new rights and the laws to support them is not going to be easy. Individuals, authors, musicians, companies that create content, companies that buy and sell content, companies that develop and sell gadgetry, all have differing needs. There will not be one right answer, all we can do is hope to make a compromise that serves our collective needs as best we can. We will not achieve this if one group gets to dictate terms to all of the others.

The good news is that we live in a society that is used to compromise. Our open and democratic process allows for laws to be proposed, formulated, discussed, and argued about until finally enough people agree to bring it to a vote. Our elected representatives then vote for or against the law and those votes are recorded so that the people can hold them accountable for them. This is the process that we use to create law in New Zealand, and it is this process that we should follow to develop the new copyright deal.

The Content Industry Response

The content industry does not want to go through this process. They see the changes arising from new technology as a threat to their business, a threat that will undermine their ability to make money from controlling the distribution of content. Unsurprisingly, they’d much rather rewrite the law to meet their own requirements.

One attempt at this was the infamous section 92a amendments to the Copyright Act. This allowed for the content industries to get someone’s Internet access cut off after accusing them three times of copying unauthorised material. There was no due process, no requirement to prove that this had actually happened, no way for the accused to defend themselves. Thankfully section 92a acted as a wake up call to a large number of people. Their noisy opposition, led by the Creative Freedom Foundation, managed to persuade government that section 92a was a bad idea and should be abandoned.

Evading Democracy

This finally brings us around to ACTA. If the leaks are true, the Anti-Counterfeiting Trade Agreement treaty has morphed from being an attempt to establish a common approach to dealing with counterfeit goods, to being another attempt by the content industries to impose their views about copyright on the world. More importantly, ACTA is an attempt at doing an end-run around the democratic process.

Section 92a could be defeated because it was done in public – we have an open and democratic government and the outrage of the people was enough to stop it.

ACTA is being negotiated in secret. Other treaties have been negotiated in public with the draft texts are released for public comment.  It seems all too likely that at some point the final treaty will be produced and presented to New Zealand as a fait accompli. We’ll be told that it is the price of joining the Trans Pacific Partnership free trade agreement and that there is no provision for the terms to be changed.

Instead of working together as a society to come up with the new copyright deal that balances the competing requirements, ACTA is an anti-democratic attempt to use the cover of an international treaty to impose one group’s ideas on everyone else. Copyright law, part of the core of the content industry, is far too important to be decided in this way.

Conclusion

Tech Liberty believes in open and democratic government, and the current ACTA process works against this.

It is unacceptable that the New Zealand government should be a party to these secret dealings. If they cannot be opened up to public scrutiny, we demand that the New Zealand government withdraw from the ACTA process until such time as it can be negotiated in the open.

When New Zealand reforms its copyright laws, the only acceptable way to do this is through the democratic process. This will not only produce a better and more balanced law, but the necessary compromises captured within it will have far greater legitimacy for going through this process.