Library and Information Association of New Zealand Aotearoa
Te Rau Herenga O Aotearoa

Submission on the Trans-Pacific Partnership (TPPA) Implementation Bill 2016


Submission on the
Trans-Pacific Partnership (TPPA) Implementation Bill 2016

To: the Committee Secretariat
Foreign Affairs, Defence and Trade

May it please the Committee:

1. LIANZA, The Library and Information Association of New Zealand Aotearoa / Te Rau Herenga o Aotearoa is a non-profit, membership based organisation that advocates on behalf of library and information professionals within the sector. LIANZA represents public, educational, commercial, industrial, legal and government libraries in New Zealand.

2. LIANZA has previously made submissions opposing the TPPA process. This opposition does not stem from a philosophical opposition to trade deals, nor from a partisan opposition to copyright owner rights. Rather, LIANZA recognises that copyright law needs to strike a balance between the interests of copyright owners and users. LIANZA submits that the current balance is weighted unduly heavily in favour of copyright owners and will be even more so if the TPPA Amendment Bill 2016 is passed in its present form.

3. We wish to appear in support of this submission. Jennifer Campion, chair of the LIANZA Standing Committee on Copyright, will appear.

4. This submission is particularly concerned with four key aspects of the TPPA Amendment Bill 2016 (“the Bill”):
• extension of copyright term;
• the new rights for performers;
• the new regulations for technical protection measures; and
• rights management information.

5. For each we will identify particular clauses and suggested amendments that would address issues we have with the Bill’s current wording and effect.

6. We begin with a summary identifying those aspects of the Bill we support, and those aspects we consider problematic. We then raise several preliminary points, before commencing our substantive submission on the 4 key aspects identified in [4], above.

Support of Other GLAMS-Sector Organisation Submissions:
7. While our submissions are focused on the impact of the Bill on Library and Information service providers (“LIS”), we have had the benefit of reviewing, in draft, the submissions of Universities New Zealand, Creative Commons New Zealand, Te Papa Museum, and the Christchurch Art Gallery. We support those submissions.

8. In summary, we consider that the Bill worsens the current imbalance of rights in copyright law. This is chiefly due to the increase in term, but the totality of the changes amount to the promotion of rights-holder interests at the expense of those of users.

9. LIANZA urges the government to reconsider the way in which it is giving effect to the TPPA; and to incorporate, by means of additional (explicit) exceptions, further safeguards for non-commercial copyright infringements. In particular, covering those non-commercial infringements that may occur in LIS sector activities and which copyright law recognises as legitimate, such as copying undertaken for educational purposes. While a consideration of these is beyond the scope of the Bill, and therefore beyond the scope of this submission, we submit that a robust copyright law review is the best means through which to identify and examine the appropriate exemptions.

10. The TPPA requires New Zealand to extend copyright term to match the “life plus seventy years” term under the United States of America’s copyright law. This does not conform to the “life plus fifty years” position agreed under international instruments such as the Berne Convention. As the Bill’s extension of copyright duration is being enacted only to bring New Zealand copyright law into alignment with United States law (the extension being of no value to authors or creators who are long dead, and being out of sync with international copyright conventions); LIANZA submits that, should the USA choose not to join the TPPA, no change should be made to the current copyright duration provisions of the Copyright Act 1994.

11. We submit that if copyright term is to be extended to match US law, New Zealand should also adopt the US’s “fair use” exemptions that somewhat mitigate the effect of a longer copyright term, rather than the more narrow “fair dealing” exemptions we currently operate within. This point is expanded upon, below at [25] et seq.

12. In the alternative, LIANZA would like to see the following provisions included in New Zealand copyright law:
• clauses in our law equivalent to those in the United Kingdom that indicate that: “to the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable”;
• comprehensive exemptions covering non-commercial infringements that may occur in LIS sector activities which copyright law recognises as legitimate;
• extension of exemptions covering the use of film in educational contexts to extend beyond situations involving the teaching of film-making;
• introduction of a clause to require tax-payer funded research outputs to be made available on exclusive licences for no more than one year before becoming free of copyright; or
• a blanket requirement for non-commercially sensitive, tax-payer funded research project outputs to be made available free of copyright as a condition of funding;
• a section that places limits upon the wholesale or unrelated selective extraction of private, copyright end-user content, and upon the external storage, mining, massaging, retention and distribution of this to (often identifiable) third parties; and
• following an in-depth copyright law review, a statement of purpose, incorporated into our Copyright Act, in which it is made very clear that copyright is granted only for a limited period that should aim to provide public domain access within the lifetimes of authors and contemporaries.

Preliminary Points
13. Before setting out our substantive submission, there are several preliminary points that must be addressed, and we do so now, before moving to our substantive submission.

Effect of TPPA supranational rules on N.Z. and developing nations:
14. Copyright law reflects a Western conception of intellectual productivity as a property right. This approach does not accord with the view of knowledge held in nations with a strong oral tradition, or with indigenous peoples who do not conceive of the world in this way.

15. Implementation of this Bill prior to undertaking undertake a wide, responsive, New Zealand copyright law policy review and modification, would reduce New Zealand’s ability to protect national intellectual property interests.

16. It will also affect our ability to take a leadership role in the South-Pacific region. Tokelau, the Cook Islands and Niue are nations that borrow from, or rely on New Zealand copyright legislation. Because the Bill proposes changes making it possible to ignore or minimise indigenous intellectual property rights in future, enacting it without suitable safeguards for indigenous rights risks New Zealand being unable to continue to guide these nations in this area or – worse still – risks guiding them in a way that may be contrary to their interests.

Copyright Law Review:
17. We are concerned to learn that a broad review of the Copyright Act 1994 due in 2013, is now in question. LIANZA was already concerned that this overdue copyright law review would be taking place separately and subsequent to TPPA negotiation, so we are alarmed to think that the government could consider that the TPPA implementation process, together with the creative sector consultation process, could constitute an adequate substitute for wide-ranging and in-depth public consultation and review of copyright law more generally.

18. A national consultation process covering copyright law more fully than the TPPA implementation process is capable of, is absolutely necessary; and will, no doubt, bring out issues that have not arisen in this amending legislation. LIANZA urges the government to prioritise this review and engage with all stakeholders over this pressing concern.

International Treaties, WIPO Participation, and Harmonisation of Law:
19. The TPPA requires New Zealand to sign up to international treaties, which will introduce stricter copyright provisions than those under which we currently operate. New Zealand’s previous non-signature of these treaties reflects a deliberate decision not to adopt these provisions which, we submit, reflects views expressed by the New Zealand public.

20. New Zealand’s non-signature of these treaties has enabled GLAMs sector organisations (galleries, libraries, archives, museums, and related information service providers) to provide content to users that would not be possible under these treaties. This has, in turn, benefitted society as a whole through the preservation, curation, and provision to the public of cultural and heritage content. Adoption of these international treaties jeopardises the quality of service that LIS can provide: there will be an increase in transactional costs, as well as reduction in flexibility and scope of information provision.

21. These international conventions provide for a copyright term of only 50 years from the death of the author or date of first publication. Consequently, it cannot be said that the TPPA’s extension of copyright term to a period of “life plus 70 years” is done to reduce regulation or bring our copyright law into line with international practice. (Indeed, only 50 of the world’s 193 countries have signed the WPPT; only 51 the WCT.) Rather, the TPPA extends copyright term to match the position in US law, without offering the more wide-ranging exemptions available under US law’s “fair use” provisions.

22. Rather than reducing regulations, the TPPA is having the opposite effect with regard to intellectual property law, without concomitant reductions in costs or increases in availability of intellectual content. Consequently, we must question whether the inclusion of copyright, as well as progressive copyright maximisation, in trade negotiations is the most appropriate way to shape national law and policy concerning intellectual property.

23. Additionally, we must note that New Zealand officials have not attended the World Intellectual Property Office’s Standing Committee on Copyright and Related Rights over the last few years, nor participated actively in, or signed, the development of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled. Issues discussed in these meetings figure prominently in the TPPA and this Bill.

24. We question how far the TPPA implementation process undermines New Zealand participation within WIPO endeavours and how far this Bill will impede harmonisation of New Zealand copyright law with that of other nations not party to the TPPA.

Fair Use:
25. While LIANZA recognises that copyright can provide a valuable incentive for creativity and innovation, excessive and complex copyright can have contrary effects.

26. We submit that the increase in copyright term proposed by the Bill lacks the Fair Use regime understandings, limitations and exceptions available to the U.S. Member Party whose IP sectoral advisors have clearly had influence on this Bill.

27. We therefore submit that should increases in copyright duration such as stipulated in this Bill be imposed on New Zealand under the TPPA or other integrated economic or trade negotiations, our legislation should at least be fashioned to include the limitations and types of exceptions offered under Fair Use, thereby allowing New Zealand libraries and citizens to undertake activities that are clearly within the public interest.

28. Better still, we recommend New Zealand also adopts a “fair use” regime, which is simpler to understand and apply than our current “fair dealing” exemptions. The detailed restrictions in this Bill exacerbate the imbalances already apparent in our copyright law, and further handicap LIS’s ability to obtain, identify, preserve, and facilitate access to New Zealand intellectual content and cultural materials.

29. LIANZA appreciates that the open-ended nature of “fair use” provisions may not incline Parliament to endorse such a wholesale change to New Zealand copyright law. However, it is equally wholesale to extend copyright term by a further 20 years, particularly as the TPPA is a living agreement.

30. Finally, as we are considering a wholesale adoption of the United States of America’s copyright law term, it is worth bearing in mind the words of respected United States Supreme Court Justice Ruth Bader Ginsburg, who observed during oral arguments in Eldred v Ashcroft 537 U.S. 186 (2003) that: “there has to be a limit...Perpetual copyright is not permitted.”  
Substantive Submission

Extension of Copyright Term
31. While it might seem that copyright extension from remaining author’s “life plus fifty” to “life plus seventy” years in clauses 9-12 will merely deprive the public domain of valuable creative works for a further couple of decades beyond our current term which accords with WIPO and WTO international instruments, there is more to this change than meets the eye. It will certainly have more negative impacts than have been emphasised by government analyses.

TPPA is a Living Agreement:
32. The TPPA is a living agreement. No rule gives the opportunity to reduce this inordinate protection, nor is this extension capped. On the contrary, the de minimis approach is rejected, which creates a risk that this Agreement is paving the way for perpetual copyright - a situation deplored and rejected by framers of copyright regimes in both the United Kingdom and the United States of America. The US Register of Copyrights has acknowledged that: “the current length of the term – the life of the author plus seventy years in most circumstances – is long and the length has consequences.”

33. These concerns are brought out clearly in articles LIANZA has highlighted in The first, by Derek Khanna, references work by contemporary economists concluding that copyright terms should really be very similar to those first offered in England and the US - about 14 to 30 or so years, all up. LIANZA is concerned that this and research demonstrating that copyright make in fact impede innovation, has been overlooked.

Changing Social Context:
34. We are now operating in a “born digital” age in which technology changes rapidly. Material that is “born digital” can be disseminated (and disappear) within hours, days or weeks. As a result, this increases the difficulties associated with identification of creators.

35. Lifetimes for human creators are now averaging between 79.5 (male) or 83.2 (female). Extending the rights that they or their assignees will enjoy from 50 posthumous years to 70 (or to a variable period depending on when an item was “first published by an authorised act”) creates a headache for anyone who has to identify the relevant creator(s) and their assignees in order to work with copyright material. It is often difficult or impractical to identify the creators, and this can give rise to the “orphan works” problem many GLAMs sector organisations are having to deal with. If creators cannot be identified and the rights associated with them managed in a cost-effective manner, it is very likely that this content will lost to future generations, abandoned on the “too hard” shelf at the back of the collection.

36. This is because excessive copyright terms increase the pool of works where the rights-holder is unknown, or legatees are unidentifiable, making it impossible to determine if the material is in the public domain and, if necessary, obtain permission to copy these “orphan” works for preservation and access purposes.

37. The granting of distribution and related rights to performers exacerbates this problem: the more creators (of varying longevity) that have to be taken into account, the more untenable it becomes for GLAMs sector organisations to work with this material.

38. While not particularly relevant to LIS providers, it is also worth noting that excessive copyright terms prevent a creator’s descendants dealing with their intellectual property if the rights over this have been assigned to a publisher or other entity. It cannot be assumed that excessive copyright terms benefit creators (and their heirs) in every case.

39. Compounding this problem is a current approach in commercial contracts covering rights to assigned intellectual content in all formats, and in all languages, worldwide. While there is no guarantee of execution of these rights, our legislation needs to counter this with stronger safeguards for the creators of intellectual property by supplementing such instruments with the provision of guidelines to facets of copyright law on the IPONZ site comparable to those of the United Kingdom Intellectual Property Office.

40. Few members of the general public realise the implications of their copyright material being shared or assigned, or held in platforms whose conditions of use may not have been read. Nor would many have realised the importance of putting in place formal arrangements for their transmission and ownership on death.

41. The situation described in the foregoing 2 paragraphs could lead to the loss of clarity over rights and/or access to New Zealand intellectual content, and it is submitted that Parliament should be proactive about clarifying rights.

42. Additionally, it is worryingly easy to conceive of a future in which there is a concentration of ownership of intellectual property content in the hands of a decreasing number of publishers or organisations which have no particular obligation to enable New Zealand to maximise the social, cultural and economic benefits of that content. Further, this concentration of ownership is likely to result in a regular and substantial annual profit taking amounting to a windfall for rights-holders, with no reciprocal benefit to the society conferring that windfall.

43. Extension of term imposes a serious limitation on access to comprehensive, trusted, up-to-date information and, consequently, New Zealand’s capability to direct its intellectual capital effectively in support of the nation’s scientific, cultural and social understanding and development.

Practical Difficulties LIS Providers Face Due to Copyright Term:
44. Imposition and respect for posthumous copyright rests on assumptions that death dates of creators are readily identifiable. This can be hard enough for librarians to establish, let alone a member of the public! The extension of term therefore makes it more difficult for the general public to comply with the law, and may create a situation where LIS providers are expected to become the default “copyright” police. This would be unfair and impractical.

45. Recent initiatives to reduce library services costs exacerbate the burden that will be imposed on libraries by an extension of copyright term. It is not necessarily easy or cost-effective for staff to devote their time to identifying a creator of copyright content, ascertaining that creator’s death date, and determining what copyright restrictions apply in respect of their copyright works.

46. Commercial publishers are not in the business of disclosing the personal details of authors or creators they represent. Nor should they be, so this is another reason to question posthumous copyright.

47. The proposed term extension would mean digitisation projects aimed at preserving New Zealand’s cultural heritage risk being held up a further 20 years. Even a further 10 year wait for works due to come out of copyright within eight years of commencement of the Bill, unduly impedes LIS provision of important heritage material.

48. In summary, the effect of government directives, the timing of this Bill, and lack of a statement of purpose for copyright that reflects its original intent of serving both creator and user within a reasonable period, effectively grants the next best thing to perpetual copyright to rights-holders. The TPPA’s Preamble emphasises aspirations with which library services support; however, extended copyright duration will not assist their fulfilment. To be more than empty words, the wider socio-economic interests must be sustained through carefully crafted, evidence-based national legislation and wide international community agreement on minimal standards.

49. For the foregoing reasons, we suggest that, in order to protect the public interest, provisions that promote fair and democratic access to information need to be brought into the Copyright Act 1994. In particular, it is necessary to add a statement of purpose reflecting the original intent of providing strictly limited period of exclusive rights of reproduction and distribution of intellectual content, and to pursue a similar revisions of IP law within the appropriate international organisation like the World Intellectual Property Office.

Specific Clauses:
50. Turning now to the specific clauses of the Bill, LIANZA sees absolutely no justification for the additional 25 years leeway allowed in cl 10 (amending section 23 of the Copyright Act 1994) concerning the period from within which copyright begins to apply with regard to sound recordings and films, as opposed to the period given most literary, dramatic, musical and artistic works.

51. With regard to the amendments proposed in clauses 9 and 10 of the Bill, LIANZA wishes to express its deep disappointment with the quality of analysis and selective arguments offered by way of justification for the extension of copyright term in: LIANZA would be very happy to elaborate on these in an oral submission to the Committee.

52. Clause 11 (amending s 28 of the Copyright Act 1994) concerns the types of organisations covered in the regulations. Given that these organisations:
• publish international law and instruments like the UN Charter, various conventions, recommendations, world-wide plans and other material intended for public awareness and understanding; and
• were not, to our knowledge, party to the development of the TPPA, let alone able to continuously monitor and edit its text; nor actively requested extension of copyright;

and given that:
• for storage or budgetary and/or management reasons (and possibly even due to lack of awareness of contractual responsibilities), New Zealand libraries have been disposing of international intergovernmental documents and publications that the public may look to access in NZ; and
• IGO digital links cannot be relied on for ongoing access to content;

LIANZA submits that the proposed extension of copyright duration in respect of s 28 of the Copyright Act 1994 per the TPPA Amendment Bill, is highly inappropriate and should not be enacted.

53. In light of overseas research into the negligible value, if any of copyright extension, LIANZA recommends that the clauses applying to copyright extension be rejected as unjustifiable.

Performer Rights
54. The option in the new performer rights offered in the Bill that could give rise to high LIS transaction costs is the need to respect the moral attribution rights of all performers, not just those of authors or directors of performances. Without the limitations offered in mitigation of this, compliance would be costly and impractical.

55. The proposed new section 174C(2) of the Copyright Act 1994 will be too strict for genealogical and family history purposes, given that all subsections must apply. As it stands, it makes family sharing of recordings impossible for those not living in the same household; when a family performer has died without adequate testamentary arrangements in place; or is no longer able to articulate their wishes. And the owner may not necessarily have the equipment to undertake the steps required at their property. They may also seek assistance from libraries to achieve their ends. Thus, modification or exception to this section should be considered.

56. Regarding the proposed new section 194B of the Copyright Act 1994, LIANZA believes it is incumbent upon MBIE to make guidance available on its website on this issue, even if just pointing to pointers provided by InternetNZ and the New Zealand Law Society.

Distribution Rights:
57. The Bill also proposes rights for performers to control the distribution of sound recordings, which will be granted equal standing to the rights of the authors, requiring third party users to separately negotiate with both rights-holding parties.

58. However, while LIANZA is not opposed to the recognition of distribution rights for performers per se, there are definite practical difficulties that arise from the inclusion of performers as an additional category of rights-holders from whom permissions must be sought in order for copyright works to be utilised. To this end, the Bill adds to the complexity of copyright law and, consequently, to the compliance costs incurred by LIS. While collecting societies are moving towards a unified process to mitigate the effects of this, it is submitted that it should not fall to these organisations to provide this counterweight to the terms of the law, and these endeavours can in no way be seen to ameliorate the clear legal barrier to rationalisation of copyright that the Bill introduces.

59. Given that the copyright permissions could be negotiated between the rights-holders (for example, between the author and producer when an author’s work is embodied in a sound recording settling distribution and royalty terms, so that third parties need only negotiate with the owner of copyright in the sound recording), to instead require third party users to negotiate separately with the various rights-holders unfairly burdens those users with the costs of establishing copyright permission. It is submitted that it is more appropriate for the rights-holders to bear this burden. Further, this approach in no way takes account of the realities of the digital environment in which much content is now being produced.

Related Rights:
60. The Bill essentially provides performers the same moral rights as authors and producers. Mitigating this, the Bill proposes to provide the same exemptions for libraries in respect of performer rights as are currently allowed for in respect of authors and producers in ss 41, 42, 43A, 49, 59, 60 and 81A of the Copyright Act 1994. In effect, LIS will not be subject to these sections in respect of performer’s related rights if they are not subject to these rights for authors, etc. LIANZA supports these exemptions.

61. The requirement that the right to be identified as a performer must be asserted (as in the proposed new section 170C of the Copyright Act 1994) and the new 170B(2) may assist in reducing library cataloguing and events work. Similarly, the proposed new sections 170D, 170G, 170H and 170I will assist in reducing business costs when dealing with performance related matters in libraries. This suggests additional exceptions be proposed in cl 22 of the Bill.

62. However, LIANZA is concerned that the related rights provisions of the Bill reflect the realities that it is often difficult, impractical, onerous or impossible to accurately identify all performers. Given the non-commercial context in which LIS facilitate access to information, it is important that provision of these services is not impeded by burdensome compliance obligations that in no way benefit performers (i.e. if the costs of compliance are too great to justify LIS making the performance available to users).

63. Importantly, “performance” could include, for example, a lecture given in a library. While the LIS hosting the lecture would likely be advertising the lecture by identifying the speaker/“performer”, the rights granted to performers to control the distribution of that performance or recordings of it could impede the LIS making the performance available to the public. While this could perhaps be ameliorated by prior agreement between the performer and LIS, that will only address situations where the LIS is in a position to negotiate with the performer. With the screening of a recorded performance, this may not prove to be the case. For example, LIS may find themselves affected by these sections when:
• assisting in the promotion of performances;
• enabling performances to take place in library buildings;
• assisting with recording or editing of performances;
• providing access to recording of performances (on premises); or
• lending copies of performances.

64. We submit that, for the sake of providing certainty, a specific exemption should apply to LIS, additional to the more general exemption covering situations where it is impractical to recognise moral rights of performers.

65. While it does not affect LIS service provision, we are generally concerned that the performer’s right not to object to derogatory treatment be tempered by a recognition that parody and satire are legitimate social criticisms, and appropriate exemptions be recognised. Having had the benefit of reading in draft New Zealand Universities’s submission on this, it is sufficient to note here that we agree with their points.

Technological Protection Measures (“TPMs”)
66. Copyright law has traditionally focused on the act of making and distributing a copy - the point at which infringement occurs. While it is a generalisation and perhaps an oversimplification, if someone uses the work without copying it, copyright is not infringed. However, with improvements in technology and publishers increasingly operating across jurisdictions, rights-holders are now able to restrict access to protected content, and can also prevent non-infringing copying. The rationale for this (copying is becoming much easier thanks to technology, so technology measures must be taken to prevent this) is understandable, but LIANZA is concerned that TPM provisions introduced by the Bill may prevent users making legitimate (i.e. non-infringing) use of copyright content.

67. The clauses are not well-worded, and it is in parts unclear what the law is attempting to remedy. The 2008 amendment to the Copyright Act 1994 was concerned with prohibiting dealing in TPM circumvention devices and providing services to circumvent TPMs. The Bill proposes to prohibit the act of circumventing a TPM, but then applies this to acts carried out in the course of business, suggesting a commercial element must be present. If this is the case, this should be made explicit and appropriate exemptions applied to non-commercial uses, such as those LIS providers engage in.

68. It must be remembered that circumventing a TPM may be necessary in order to access legitimately acquired content, in order to use it in a way that does not infringe copyright. The law should reflect this reality.

69. Above all, copyright law should address the act of copying – if copyright is not infringed, the conduct should not be prohibited under copyright law.

Response to Specific Clauses:
70. New sections 226A, 226AB and 226AC prohibit dealing in TPM circumvention devices and services if they are likely to be used to circumvent a TPM otherwise than in a manner permitted under ss 226D to 226K. Given that most products and services for circumventing TPMs could be used for both infringing and non-infringing TPM circumvention, this is likely to limit availability of products and services available to libraries for non-infringing circumvention.

71. LIANZA is in support of new section to the Copyright Act 1994 226D, which allows a person to circumvent a TPM to enable the person to do an act that does not infringe the copyright in the TPM work and does not infringe related rights.

72. LIANZA supports new section 226E, which allows a person to circumvent a TPM that controls geographic market segmentation that could prevent the playing or operating of a physical non-infringing copy of the TPM work in New Zealand, but we argue that this should be extended to the playing or operating of a digital non-infringing copy of a TPM work.

73. New section 226F (law enforcement, national security, and performing or exercising other functions, powers or duties), when read in conjunction with the Telecommunications (Interception Capability and Security) Act 2013, Government Communications Security Bureau Act 2003 and section 237(b) of the Contracts and Commercial Law Bill, would appear to remove legal loopholes on access to items of interest to law enforcement and national security, by authorising circumvention of TPMs; thereby facilitating copying, without a warrant or other restriction, material in analogue or digital form, without the express knowledge or permission of the owner of the contracts or licence governing the software or hardware enabling access to supporting systems and private intellectual content of the copyright owner of the system.

74. The implication of the above brings into question the “No” response given in the section on Privacy in the Departmental Disclosure document on the Bill.

75. Libraries operate on principles of respect for client privacy, and expect to enjoy privacy of operations as much as any other person or corporate. LIANZA asks that this clause is qualified by a clause requiring that any circumvention for the two purposes mentioned is undertaken only following provision of a warrant (regardless of whether the case of circumvention is undertaken in or of library or others’s TPMs).

76. LIANZA would like to see libraries treated as a class for which warrants should be produced when exercising this and any other related copying, search and seizure rights under the Copyright Act 1994 for the purposes of law enforcement and national security.

77. Proposed new section 226G sets a high bar for the definition of “encryption researcher”. We suggest that this section be brought in line with 226J(3), which does not set the definition for security researchers as narrowly.

78. New section 226I will allow a person to circumvent a TPM in certain circumstances where the TPM involves a computer program that is no longer supported by a remote server. LIANZA would like to see clarification for the scenario where the copyright holder of the TPM work cannot be established - must a person retain the TPM protection that requires remote server interaction?

79. LIANZA greatly appreciates the provisions of new section 226M, but suggests that they be extended to museums and galleries in addition to libraries, archives and educational establishments.

80. LIANZA appreciates the focus in s 234 on ensuring that ss 226D to 226L allow for non-infringing use or copying in their respective contexts. We hope that both law and regulations made under this section are reviewed periodically to take into account new technologies and new methods of content distribution and access. However, as legislating by regulation is a less democratic process, we would prefer to see more frequent reviews of the Copyright Act itself to ensure that it remains fit for purpose.

81. Under the first clause of s 234(2)(a) citizens are very dependent on Ministers’s judgement, political ideology and willingness to consult individuals or groups who may be “substantially affected” by proposed regulations. But we welcome the requirement for justification in s 234(4) which offers that could offset the above-mentioned risks.

Rights Management Information (“RMI”)
82. Libraries always do their utmost to do adequate research and avoid infringement, but there are times when that could inadvertently occur.

83. LIANZA welcomes the inclusion of subsection 2 of s 226O, 226P and 226Q because when materials are gifted to libraries for addition to their collection, it is not always clear if there should be some associated RMI, or RMI indications may not be provided, particularly with offers of personal collections. This protection is also valuable given that mergers and takeovers in companies with which we deal can alter what RMI applies. New owners’s policies may be partly at odds with, or quite different from RMI applicable at time of original print or digital publication. And some cases these are ambiguous and require the business costs of clarifying or correcting these.

84. Also some publishers have sought greatly increased rights over those under which works were originally contracted, and these can create collection management and information provision problems. Certainly missing or faulty RMI can have the effect of preventing content availability and preservation, and is a potential reason for permanent loss of intellectual content or orphan works.

85. We suggest the possible addition of “constitute” to the list of verbs in proposed new sections 226O(2)(b) and 226P(2)(c).

86. We are pleased to see s 226S (2)(a)(i) qualified by s 226S (2)(a)(ii) as, otherwise, given the breadth of RMI definition, relabelling file downloads with abbreviated label information indicating origin (e.g. New Zealand Herald to NZH) to a practical length for backups would be a case of infringement.

87. Given the scope RMI can take, from the trivial to RMI protecting very expensive intellectual content, we consider that the size of the statutory penalties proposed in s 226S(3) means that this clause should be qualified to make it clear that it needs to be applied with care to be proportionate to the offence.

Concluding Remarks
88. For the reasons set out above, LIANZA supports an implementation of the Bill that takes account of the way in which LIS are used and affords appropriate exemptions for these.

89. LIANZA would like to note that the limitations and exceptions to TPPA requirements that Ministry of Business, Innovation and Employment staff have drafted in the Bill in an endeavour to protect user interests are appreciated and we urge that these and any others that can be devised to appropriately safeguard national human interests be accepted by Parliament and external Member Parties, and not subsequently retracted or modified in ways inconsistent with the public interest.

90. Finally, we repeat our support for a more wide-ranging review of copyright law, and urge the government to treat this as a separate process to the TPPA implementation process, and to prioritise it.

Jennifer Campion, Chair
LIANZA Standing Committee on Copyright
22 July 2016.

Thadeusz, Frank. (2010 August, 18). No Copyright Law: The Real Reason for Germany's Industrial Expansion? Der Spiegel.

Heald, P. (2013, July). How Copyright Keeps Works Disappeared. Chicago: University of Illinois, College of Law. Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-07; Illinois Public Law Research Paper No. 13-54.

Carrier, M. A. (2012,October 12). Copyright and Innovation: The Untold Story. NJ: utgers Law School. (2012 Wisconsin Law Review 891).

DiCola, P. C. (2013, January 9) Money from music: Survey evidence on Musicians' revenue and lessons about copyright revenue and incentives. Chicago, Ill: Northwestern University School of Law. 55 Arizona Law Review 301 (2013); Northwestern Law & Econ Research Paper No. 13-01

Brannick, K. Is Anyone Listening? An Examination of New Zealand Musicians in the Digital Age In partial fulfilment of the requirements for the degree Master of Information Management. Wellington: Victoria University of Wellington, School of Information Management. (See conclusion).

De Zayas. A. EU / Trade agreements: UN rights expert warns against bypassing national parliaments.(2016, June 24). de Zayas Human Rights Corner).

Shaheed, F. (2014 December 24). Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed: Copyright policy and the right to science and culture. (Human Rights Council Twenty-eighth session Agenda item 3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights including the right to development, A/HRC/28/57). New York: United Nations General Assembly.

UN experts voice concern over adverse impact of free trade and investment agreements on human rights. (2015 June 2). (United Nations Human Rights, Office of the High Commissioner Media Statement) Geneva. United Nations Human Rights Council.

Capaldo, J, Izurieta, A and Kwame Sundaram, J. (2016 January). Trading Down: Unemployment, Inequality and Other Risks of the Trans-Pacific Partnership. Somerville, MA: Global Development and Environment Institute, Tufts University. (GDAE Working Paper, 16-01).

Coates, B. et al. (2016, January). The economics of the TPPA. Auckland. With funding support from the Law Foundation.

Johnson, Dave. (2016, May 26). Stop Calling the TPP a Trade Agreement: It isn't. Common Dreams. Campaign for America's Future (Blog).

Ikenson, D et al.(2016 June 30). Should Free Traders Support the Trans-Pacific Partnership? An Assessment of the Largest-Ever U.S. Preferential Trade Agreement. An Abstract of a Forthcoming Cato Publication

Stumo, M. (2016, January). CPA Commentary: How to think abou the new Peterson Report on the TPP.

Share this on