Trade
Walt Disney Corporation championed extended protections for its cartoon characters; now New Zealand is conceding to paying for longer copyright
Opinion: The in-principle trade deal reached between New Zealand and the United Kingdom contains a provision that will see New Zealand ship tens of millions of dollars overseas annually, most of it to countries that aren’t even the UK – in service of a policy that experts here in the UK, and globally, agree is simply no good.
What on earth is going on?
The provision in question is an extension of New Zealand’s copyright term by 20 years to a term of the life of the author-plus-70 years, raising it far above the “life-plus-50” standard required by the World Trade Organization. It’s favoured by the usual copyright industry players who hold broad portfolios of copyrighted works and stand to gain from being able to exploit them exclusively over an even longer period — various music industry associations and the Publishers Association of New Zealand, for instance, are all on the record as enthusiastic supporters of term extension.
It’s now well settled that this kind of copyright term extension is bad policy.
Not in any ambiguous or arguable way, or in a “well-some-people-think-it’s-bad” way. It’s a subject that’s had an impressive amount of expert and specialist scrutiny, yielding broad professional, academic, and governmental consensus that term extension simply does far more harm than good. If anything, experts believe the term should be substantially shorter than it is now.
As copyright adviser for Tohatoha Aotearoa Commons, we oppose it. Tohatoha (formerly known as Creative Commons Aotearoa NZ) is a community-focused not-for-profit organisation that is the latest form of New Zealand’s evolving commitment to a fair and equitable digital world. It was founded with a focus on open copyright licensing, but our work today addresses a wide range of issues, amplifying the voices of those harmed by digital technologies, and working toward solutions to build a just and equitable Internet.
But we’re not alone in our concerns. The Ministry of Foreign Affairs and Trade knows term extension is bad policy. New Zealand considered longer copyright terms as part of the negotiations around the Trans-Pacific Partnership Agreement. The verdict then? That term extension was an economic loser of a provision that would cost around $55m annually. New Zealand’s current, albeit stalled, review of the Copyright Act reached the same conclusion, taking term extension off the table for lack of any compelling evidence that it would provide a public benefit.
Keep in mind, New Zealand is a net importer of copyrighted works. All of our most important trading partners already extend their too-long copyright terms to New Zealand authors, meaning we already get the benefits (such as they are) of long terms, but without paying the costs. Economically, you’d think the case against extension couldn’t be clearer, but overseas experiences somehow manage to crystallise things further.
The overseas experience of term extension
The UK itself has done lots of soul-searching on copyright term length. In two separate independent reviews, commissioned experts came out against term extension — with the 2011 Hargreaves Report noting that the economic evidence against term extension is “clear.” Unswayed, the UK extended copyright for sound recordings in 2013 anyway, moving forward despite its impact assessment reckoning the move to be a net loss even before incorporating the “unquantifiable” social losses that would be suffered by consumers and creative re-users of public domain works.
Australia made the move to a life-plus-70 term in 2004, the result of a trade deal with the US. The Australian experience is also instructive: a 2016 Productivity Commission report identified copyright term extension as a “prime case” of how the law has “swung too far in favour of rights holders, often with no transparent evidence-based analysis.” The report calls the duration “a striking example of inefficient levels of protection” and quotes the Law Council of Australia in saying that the term “is on any rational basis too long.”
Finally, there’s the US, which made its move to a life-plus-70 term in the 1990s and has made the rule a fixture in its trade agreements. But, internally and outside the office of its trade representative, the US has reached the same conclusion about term extension as any other place that has seriously considered the question.
In 2013, the top US copyright official noted that the copyright term is “long” and, moreover, that the length “has consequences” — consequences requiring affirmative mitigation efforts, possibly including limiting the application of extended terms. That official is no enemy of copyright; in fact, she’s now the President of the Association of American Publishers. The Authors Guild — an organisation that spends millions fighting for strong and expanded copyrights — has reportedly said that it too is against further term extension and “if anything, [it] would likely support a rollback to a term of life-plus-50.” When key players in the copyright industries start to balk, it’s time to start thinking something is seriously amiss.
Economists, for their part, have seen through the problem very clearly. In American litigation over the constitutionality of their term extension, an independent group of economists — among them, five Nobel laureates — advised the US Supreme Court that the extension was a likely economic loser: the gains provided to copyright owners were, when considered in present value terms, vanishingly small, and the social costs to consumers and creatives were substantial. These policy considerations didn’t wind up carrying constitutional weight, but they resonate strongly in a world where term extension continues its march around the globe.
So, what’s at stake?
I’ll be the first to admit that if this were all just about money, then of course there’s a tipping point where the cost might be worth it. We might reasonably say, yes, the policy costs millions, but we’ll make it up with exports of sauvignon blanc. But copyright does much more than simply alter cash flows!
Copyright is one of the core legal regulators of knowledge, creativity, culture, and expression. It applies to a staggering volume of stuff — books and songs and photos and movies, sure, but also diaries and emails and computer code and sketches — in each case regulating how covered works may be used by others.
Copyright shapes what stories we are allowed to tell and how we are allowed to tell them. It limits how our museums and libraries can preserve, display, and share their holdings. It helps set the line between what culture is private, and what culture is our shared possession. Long terms don’t just cost us money, they impoverish our ability to shape, control, and preserve our cultural heritage as a collective.
More concretely, you can spoof and alter and imitate Shakespeare to your heart’s content without ever talking to a lawyer. But if you want to make creative use of a 20th century Kiwi story, tread with caution: the law will require you to get permission before putting on a Hairy Maclary musical. At stake here is where we draw the line between these two kinds of culture, between the privately and collectively held, and term extension all but ensures that our public domain won’t hold much that’s even remotely modern.
The costs of these decisions, while difficult to quantify in dollars, are extremely well understood by culture professionals, who have to navigate narrow copyright exceptions to undertake everyday tasks like preservation work, and who are aware of just how many copyrighted works cannot be readily accessed by the public because they’re “orphaned,” that is, with no discernible owner, or otherwise out of print and owned by someone with no interest in ensuring the work’s availability.
No laughing matter
If the deal isn’t fixed, then we are going to have a lot of work to do to ensure the Copyright Act doesn’t buckle under the weight of the new term length. As things are, the law is extremely limited in the exceptions it provides for expressive uses of copyrighted work — there is no parody or satire exception in New Zealand, or even a general quotation right (much less a ‘fair use’ right).
The law doesn’t provide for the orphan works problem, or for large-scale digital preservation efforts; it doesn’t even consider the possibility of new kinds of research like text data mining. New Zealand copyright law allows a copyright owner to let a work linger out of print and unavailable for the duration of the copyright term, even where the original author is alive and has an interest in the work’s availability.
Other countries that have struggled with term extension have substantially more robust limitations and exceptions in their laws, putting them in a better position to offset the problems exacerbated by longer terms.
It is essential that we’re at least as well positioned to deal with the fallout as countries like the US and the UK. In a New Zealand context, this should mean:
1 / Crafting revamped and modernised exceptions and limitations. These should be flexible and understandable enough to be readily used by the people who need them, and new exceptions should target the unique problems posed by in-copyright but unavailable works.
2 / Limiting the extension of terms wherever possible – for instance, by providing extensions only to those rights-holders who actually want them.
3 / Refusing retroactive term extension. Rights-holders argue that term extension is an incentive for them to make new works, not a reward for what they’ve already made. We should hold them to their word.
4 / Allowing authors to reclaim rights to their works in certain circumstances. Reclaiming rights is a powerful tool for increasing author remuneration and an important check on intermediaries who fail to keep their inventory commercially available.
It’s not too late to fix this deal!
An agreement in principle is not binding, and the public can still have an impact. Trade negotiators and industry sneak this kind of nonsense into trade deals because they think it will go largely unnoticed. The value of this provision to the UK is infinitesimal; the value to New Zealand is decidedly negative.
If New Zealanders care enough, we can have the provision cleanly excised without scuttling the wins for dairy and wine and seafood.
The reward will be a healthier public domain and better public access to knowledge and culture, goods precious beyond measure.
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