Nethui 2012: Copyright Plenary With David Farrar

Article – Nethui Live Notes

We don’t have to seek consensus, we don’t have to write the new © act, this is just about identifying issues that should be looked at in the review of the © Act so people at the appropriate time next year can take submissions and have that …

Nethui 2012: Copyright Plenary With David Farrar

Live notes of Nethui 2012 Copyright Session held 11.10am 11/07/2012 at the Sky City Convention Center, Auckland, New Zealand. Nethui is an initiative of InternetNZ (Note: The event was broadcast by live stream and recorded by These notes are subject to further revision. Notes by @Gnat and helpers. )

David Farrar Session Briefing Via Listserve:


For those planning to attend the copyright session, attached is a little background note on the session. It focuses on the first copyright act, 300 years ago, which in my views was a very beneficial thing. Today it is very different. The hope is that we will have a discussion focusing on first principles, rather than just one the current copyright act. The Government is going to review the law next year, and ideally we want to persuade them not to just do a tinkering – but to have a fundamental look at what should be the balance between creator and user rights in the digital age.

Things are looking up a bit. At they note a change of tone from the office of the US Trade representative, notably:

To the amazement of everyone, the US Trade Representative (USTR) announced on July 3 it would now include a provision in the intellectual property (IP) chapter recognizing the importance of “limitations and exceptions” to copyright and embracing the international 3-part test for what constitutes suitable limitations and exceptions. … It is difficult to convey to people who don’t routinely deal with USTR and the copyright maximalists that dominate trade negotiations just how stunning a turnaround this is, given the fairly well-established limitations and exceptions in US law and the fact that—as USTR acknowledged in its announcement—the three-part test for what constitutes suitable limitations and exceptions is already well-established and incorporated into international law. Indeed, given all this, the incredible thing is that this is, as USTR acknowledges, the first time USTR has included any explicit reference to limitations and exceptions. … Let me use an analogy to explain why this is, nevertheless, a big deal. For USTR to publicly embrace limitations and exceptions as “an important part of the copyright ecosystem” is the equivalent of The Pope saying: “in some cases, birth control is a good thing because it allows married couples to have sex without procreation, deepening their emotional bond with one another.”

Looking forward to seeing you all tomorrow.


DPF David Farrar Introduction:

Copyright created by Parliament, by statute — no common law. (As most New Zealand laws are, including the Bill of Rights.)

Not a session on TPP (there’s a meeting tonight about it).

NZ govt said they’ll review © Act in 2013. Two types of review: technical (tweaks) or a first principles review (back to fundamentals: what rights should creators and consumers have).

Often people like me [@dpfdpf] are portrayed as anti-copyright but that’s not true for me. I’m keen to hear from others: What should be rights of creators, of consumers: exclusive? shared? We don’t have to seek consensus, we don’t have to write the new © act, this is just about identifying issues that should be looked at in the review of the © Act so people at the appropriate time next year can take submissions and have that big debate (which we never had in this country) about copyright, being proactive rather than reacting to “we don’t like what’s proposed by Hollywood”.

citing Sipa, Popa, TPP, Farrar says “If it doesn’t have an acronym, it can’t be evil”. That’s David Farrar, often known as DPF.


Audience: Not interested in copyright as big media. I’m interested in small copyright: my right to publish blog, get my rights as author respected. Newspapers love putting up photos taken from Facebook and the web, without contacting copyright owner to seek permission. Software needs to be considered: big fan of open source; only thing that makes the GPL work is the copyright right of the author to prevent some uses. Again, that’s something belonging to small person and not just the big corporate.

David F: response – write a polite note when your content is used, and you might get paid for it.

Judge David Harvey ( from audience) What we’ve got to remember is that copyright affects every single one of us. Now we’re in the digital paradigm, we’re using equipment that survives and operates by copying. It’s necessary to how it works. It’s not a matter for big corporates any more, for publishing houses or movie companies, it is a matter for all of us. We have to be interested in this, because if we aren’t then we’ll be told what will happen by the big vested interests. Would urge you to put your views forward in the 2013 review of the copyright act, because if you don’t then you will have to suffer what the conglomerates and corporates give you.

Lin Nah (from audience): I also think it’s very important to talk that it’s important for people to bring their own devices to work, or people supplied with Netbooks, iPhones, smartphones from work. Who owns the copyright of your tweets, your pictures, etc. that you take with your work phone–you or your work? Sometimes there might be disputes between you and your employer, as some people’s employment agreements say everything is owned by the company even what you do in your own time.

[nat here: I’m taking notes; please clean up after me!]

Sam Russell (from audience): quite unimaginative to base copyright law off what was made in days of Knights of the Round Table and printing presses [demonstrating questionable grasp of history :)]. I’m not going to ride on my horse to a printing press, I’m going to connect to my computer. We are in a world where information copies itself, so how can you legislate to prevent it copying itself? That seems almost impossible.

Peter Harrison: the past gives us a very good guide to some of the problems that we’re facing now. Before the printing press, everything was copied by hand. There was a culture of the right to copy things: if you received a copy of a document you had to write it out by hand, so the only disincentive to copying was the physical act of doing it. Now that’s gone away, copying is easy and automatic, and we’ve lost this right to be able to distribute the same ideas that we receive. We lose our right to our own culture: if everything is copyright for 90 years or more, you can’t use the things in your own culture without them being ripped away from you without much consideration. For example, I had a YouTube video (I put up >150 of my own content, with CC music for backing, try to use CC-licensed material), was commenting against the Business Software Alliance doing what I thought was fair use, got a DMCA takedown which removed not only the video they were concerned about but also the rest of my videos. Free speech limited by laws like DMCA and our Copyright laws, which is taking away our right to our own culture.

@dpfdpf: Who here has licensed something under a CC license? [looked like more than half the hands]

Donald Clark: I’m hopeful. We have a fantastic review opportunity coming. Ourselves as innovators and users in this space can stay ahead of the law. We have lots of licenses for software and content out there, powerful tools, but surely at heart this is a business model and economic model problem. How do we engender, in a world where everything we use is a copying machine, a way for people to make money? Spotify, Netflix, etc. Very popular models, seeing a lot of innovation, should be cautious not to steam in and legislate or control through other means, until that ecosystem has had a chance to innovate and evolve. We may arrive at a solution where people feel there’s enough balance between exposure to content and [compensation for content?]. Judge’s decision to throw out Oracle case because “you’re abusing the court to settle your competition problems” [ ?].

@dpfdpf: You can buy any tune on iTunes but some still torrent. What remedies should be available to producers of that content, when they’ve made it available but people are choosing not to buy. Do we say “tough, Internet is giant copying machine” or should there be consequences?

Alastair Thompson (scoop): Interested in copyright issue related to news, which is increasingly uneconomic to produce. Draw attention to recent court case in UK NLA vs Meltwater contrary to what we thought, it is possible to be charged for distributing or receiving a link to a piece of material if it’s being done for commercial purposes. If a website states on its T&C that it can only be used for non-commercial purposes, a commercial user of that website can be forced to sign an EULA by the publisher. Law evolving, remedy has emerged with a lot of potential for creators of copyright and content, and attempt to get some revenue from their content. Published newspaper for NetHui with article on this in it.

Joel Wiremu Pauling: go back to what Donald was saying about business models. Throw something new into the mix: more about how content creators are actually recouping their costs from the grey market consumption. A lot of business models like iTunes or NetFlix lay in intermediate distributor position, taking a chunk out of the value of the content, a traditional model. I’m interested in how we can use the technology to recoup the value from the grey market: “I don’t care how you got my content”, not interested in changing natural behaviours (sharing information). Shouldn’t be trying to legislate stopping of sharing of information. Do want to try to recoup some of that value. What’s stopping artists from putting “pay me what you think the value is worth” is money-laundering laws! Lots of legislation around where the money is coming from to ensure you’re not money laundering. Effectively, that’s what we should be doing: shouldn’t care as a content creator how they got your content, care about recouping some of that value.

Don Christie: careful about assuming that the Internet is causing losses to content creators because the available evidence doesn’t seem to support that assumption. If we’re legislating against the Internet, have to be careful we don’t kill the goose that’s laying a golden egg for the creation industry. As a software developer who relies 100% on copyright to protect our creations, it’s another form of intellectual property (patenting) that’s allowing third parties to steal our works. That’s not related to the Internet, but is related to technology and intellectual property issues. Any review of © might take into account how other forms of IP affect software development.

@dpfdpf: hands up if you’ve legally purchased music online. almost all @dpfdof: movies? half @dpfdpf: tv? only a few

Audience: Re: content creation and selling it, specifically music through itunes. There are a lot of available options like iTunes and Amazon, but problems with people who are just starting up is that you have very little control: you give your track or album to them and you can’t control pricing or restrictions. There are a couple of things that are significantly better that are starting up: bandcamp, which has a pay-what-you-want example. Not sure about legality of that but is available option [added: Bandcamp is legal, and very artist-friendly]. Haven’t looked into statistics, but artists who are starting up — it’s having relatively big impact. I released an album with advertisement on youtube channel, top comment (w/200 likes) was “where can I torrent this?”. Generation who grew up with Internet and everything that’s available is free. So much justification (“Tom Cruise doesn’t need another million dollars”).

@dpfdpf: one real issue is length of term. Was originally 14+14, now is well beyond life. That’s something coming up in international negotiations. I’m tempted to say it should be artist’s life, but someone pointed out that it creates a perverse incentive to assassinate artists.

Audience: I didn’t grow up with the Internet, my family was too poor to have even basic connection. Did have local library, which let me get books, music, literature, movies for free. Still libraries who provide all these things for free. If we’re going to put restrictions on Internet, then going to have to do the same for libraries and schools. If we do start placing these restrictions on this media, particularly scientific media, we also mean it can’t be peer-reviewed and in scientific literature peer-review is the primary means for assessing validity of research.

Colin Jackson: You asked what should happen when people illegally download, say, music — what penalties? My proposal: n * the cost of legally downloading it (2, 3, 4?). If you download a movie you could have got from iTunes for 20 then you should pay 40, or 100. That provides an incentive for rightsholders to make their material available.

@dpfdpf: Depends of course on the cost of enforcement.

Joel Wiremu Pauling: I was quite incensed to find that my flatmate wanted to download audio books from library. Overdrive was provider, had to spend hours removing DRM to make it playable on her phone.

Geoff Lealand, U of Waikato: In iTunes downloads, artists get less than the credit card companies in overall revenues. [source for this?] Mark Stewart, (University of Auckland): Fair use and fair dealing, two terms not well understood. If we’re talking © reform, must be better understood. In education, use of material in classrooms is covered by fair use? Just hoping doing well, until I’m told otherwise. People might have some sense of fair use in States, little of fair dealing in NZ. Needs to be some form of expert plain English description of what is covered in NZ.

@dpfdpf: The US Trade Representative office just advocated a policy which would make NZ © law more liberal than it currently is. They will push for US Fair Use (including parody, satire, criticism) to be enshrined in International agreements. We don’t currently have that. Gareth Hughes (Green MP) has a bill before parliament to deal with that.

Lin Nah: Geographic regions. Plenty of people tried to buy but couldn’t because they weren’t in the right region. Why should people who want the information be denied it because they are geographically ringed. Publishers have figured out that if they don’t’ get it online, they might not get read. Academic publishers recently put some of journals online for free in open access. This from academic publishers who in the past have been very protective of their business models.

@dpfdpf 3 strikes, I will try three times to download legally, If I can’t from 3 legal sources. I will get it anyway. [someone take over please — I’m about to try to interject]

Susan Chalmers: I think that we have a real opportunity make real suggestions. We are lucky to have people from MED in the room to listen to what we are saying now. We are not talking about TPP in this session but they relate. If we sign up then some of it may impact the copyright review. I would encourage people to attend the fair deal launch at 6:30

If international obligations force us to recognise copyright as the life of the author +50 years. and we are unable to undo the berne convention, maybe we can suggest to refuse to recognise any further extensions to copyright.

Berne convention from the 1870s. long standing body of rules, international treaty status

exploring new business opportunities online, in the IPR and brand models with sub licensing

Tim MacNamara. biases from education sector. Historically we are used to content until I’m restricted. Copyright law the presumption goes the other way: you’re entitled to use until the law says otherwise.

Donovan: on Business models. Important to note the best price for any goods is ‘what the market will bear’ People aren’t prepared to pay what the content owners are asking. This is driving the pirating. people will pay when they feel the price is reasonable, won’t otherwise. anyone who downloads illegally are paying for it one way or another, just not the paying the people who created it. Kim Dotcom has shown us that it is possible to make a lot of money without copyrighting anything

Nathan Torkington: On real-goods shipping, CD distribution, book distribution predicated on middle agents making steps in the distribution possible. media middlemen developed the policies/procedures/contracts to enshrine all of these steps.

When technology changes, no longer forced to use these intermediaries, the standard operating practice remains, lucrative, high margins. still adhere to old geographic distribution models, laws. interested in exception for inaccessible content. lot of incentives for companies who distribute to hang onto the old model, inhibit new as long as possible any new models coming in “oh well buy on the CD if wish to buy legitimately at all” no one credits societies desires NOT to be a lawbreaker. It’s as wrong for the current generation, as flawed a model for them, as us. when they have earnings potential, my personal experience, and that of my peer group, when can afford will spend on the product. when 12 can’t afford to do it.

Keen to see exception for inaccessible content. Set of common facts established. Change in open access. amount of money in some model. Conflict over ‘pay what you want’ illegal or legal. until we have common set of understanding, arguing what’s possible/not possible built on tenuous platform of supposition. [fingers hurt. somebody else now] [nat back]

Daniel Spector: I used to run an American record label [SST], anyone who wants to talk about that topic contact me separately. Mechanisms were routinely used by record labels to make sure that artists never made money. But, that’s old school. New school: Copyright law needs to mimic CC recognising there need to be different flavours of copyright to cover different situations that content creators have. Many may not want to control, may or may not want to maximise money, but only have one ring (copyright law) to rule them all at the moment. Copyright covers more than books movies and TV: can cover geographic data, etc. And not all creators are human. Corporates live forever (and so their lifetime +50 is infinite)…

Jim Whitman: The point I want to make is about innovation and the way in which people are remunerated for being innovators. The extension of that capacity, perhaps deservedly, into a permanent mechanism for taking money out of a creative system. Practically (I’m thinking about Amazon books and the nexus between questions of rights and digital rights management and extending innovation rights beyond the time in which corporates deserve), we know that Amazon is collecting behavioural data as we read an Amazon book. The mechanism is digital rights management, a cloud mechanism and it creates a connection between privacy and copyright and rights management. When we talk about innovation we should look more closely at the economics of the business. Amazon has stolen the march: poor example of rights management in relation to fair use. Can’t copy out of a digital book, can’t share it because software belonging to the reader is closed down, and can’t resell your right (having purchased it) to someone else. Core potential for Amazon to completely define copyright itself just through technological mechanism, and it’s not being held to account in the way that Google and Facebook were. Needs to be hauled back in.

Andy Neale: Build off the comments about fair use. One of the things that will come up in the review, and it might be seen as small point but it’s important, but format shifting will come up again. We’ve had conversation about music, but in NZ and other jurisdictions, literature isn’t covered by format shifting. I can’t take a book I bought and convert it to digital version that I can put onto my device. Seeing it most commonly in Japan, services where people are sending boxes of books to be destructively digitized so they can read them on their devices. I work in library and that’s pretty abhorrent [laughter], but there may be some titles where we want to do that and I feel that the legislation in that area is going to have to be reviewed.

Hamish MacEwan: three streams of history that cover copyright. One is the technology. Since the press, Xerox, etc., technology flow has been towards making copying easier. Internet made copying critical to its function. Industrial regulation of copyright used to limit a few people from doing an act that wasn’t available to you and me. That goes to David’s comments: we all need to take care of it. We all surrendered copyright at a time when we could not copy. Now we can all copy but it seems that the legislation which controls copying is being driven by those same industrial organisations that have had the benefit of centuries of monopoly rents to build their cases. As Susan pointed out the Berne Convention has been around since shortly after papyrus by the sounds of it.

Three streams: tech moved one way, publishers extended width of copyright, depth of derivative works, and length of copyright term is now just absurd. No problem giving up money for people who made great works for me, but I’m not paying the dead for 50 years. That’s just absurd.[laughter from audience]

There’s a gap between what technology makes possible, and what industrial regulations allow, and that’s where we live. Unless the review is fundamental, it’ll just be a waste of time. I’ve had a look online at the history of NZ copyright and I can’t determine but we’ve had reviews before, and most recent set of amendments done in a rush because it’d been going on for a long time. Not sure when we’d get a new copyright law after 2013 review, know it won’t be quick enough to catch up to where we are now.

Jay Daley: Not sure what a copyright fundamentalist is, but I’m telling my kids that’s my new job title, but only if I can use the converse would be copyright ultranationalist, best describe Disney etc. The ultranationalists getting some false memes embedded in popular culture: want to highlight and, if possible, exterminate them.

First: © is a right. Don’t agree: there’s a right to be asserted as author of work, but rest is state-granted monopoly. As we know, all state-granted monopolies are subject to corruption.

Second, being paid for work and controlling access to work. All about maximising revenue, nothing else.

Third, content is expensive to create. Find this rude and self-indulgent. Worry if there’s a connection between the money we put into creating content, and the lack of meaning in much of what is created. [applause from audience]

Joy Liddicoat: wanted to go back to your original question about how we balance appropriate interests in © legislation. Wanted to go back and look at what is in the public interest when it comes to restricting access to content. Have much bigger issues now about how we in our communities access content: thinking about disabled people, their ability to change formats, don’t believe we have adequate provision (hope review will take care of it).

In terms of offences: no more criminalising copyright offences. No more permitting extradition for copyright offences. [Applause] A lawful resident to be extradited for crimes of speech.

Rejection of ACTA: must review the penalty for copyright offences which allow access to be denied or accounts terminated for repeat violations. Fundamentally flawed, wrong, and has been rejected by countries to whom we look for human rights issues.

Lin Nah: We seem to worry about life of copyright but lot of media is in digital form. How much can be readable in digital form, considering formats and storage changes? Shall we legislate to make sure that stuff is available in open readable formats so it’s not in a proprietary format that goes away when the business goes bankrupt or sells to someone else?

Sam Sargeant: From a consumer’s point of view, I have a split point of view on copyright. When it comes to David’s photographs, I have utmost respect for not using them without your permission. But for Game of Thrones: will pirate, no worries. Not sure why: perceive many middlemen clipping the ticket. Perceive they’re making plenty of money already: just one person stealing their content. Need to engender respect in copyright for everyone, don’t have a plan for that with the next generation who will pirate anything and expect it to be free.

Rochelle Furneaux: Following on from Hamish, if we’re going to get back to first principles, do we look at copying not being the prohibited act. Some other act: unattributed use, commercial use, … Back when copyright was made, copying was the prohibited act because it was expensive. I don’t know what the appetite is for changing that because it’s almost impossible to see, if you change it to use, what the ramifications for change would be.

@dpfdpf: Great issue to think about and end on. Means at least caching would no longer be caught up in demands from some countries. Two points to end on: review is not yet determined whether it’s narrow or wide, so you should make your views known to the government. Finally, we have BarCamp on Friday — so many issues came up, if you want to keep talking about them, write up some issues and topics on the agenda and carry the discussion on then.


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