Earlier this month it was reported that the department of the New Zealand government responsible for leading the current review of the Copyright Act (1994), the Ministry of Business, Innovation and Employment (MBIE) had issued a welcome statement withdrawing the revised objectives paper for the review it had released back in November of last year. MBIE’s statement reads, in part;
“We are writing to let you know about the latest stage we have reached in the review. In November 2019 we published a paper outlining revised objectives for copyright law. This paper was developed in response to the submissions on the Issues Paper we had previously received in April 2019. The main change we had proposed to the revised objectives was to ensure they more expressly recognise the rights and interests of people involved in creating copyright works.
Some stakeholders have raised concerns about this paper and their inability to provide formal feedback on it. It is important to MBIE for all stakeholders to have trust and confidence in the review. For this reason, we are withdrawing the revised objectives paper. The next stage in the review will be to formally consult on potential revisions to the objectives. (Emphasis added). This will ensure all stakeholders have the opportunity to fully contribute to this part of the process in an open and transparent way.
We expect to carry out this further consultation as early as possible in the new Parliamentary term. Following this, we will consult on an Options Paper.”
The New Zealand Society of Authors, who reported this turnaround, noted;
“We were delighted to secure the support of Minister Faafoi to achieve this and look forward to re-engaging with MBIE to develop objectives for the Review that will deliver legislation that will underpin the growth of New Zealand’s creative economy.”
This is a welcome rethink of the copyright review process and a needed pullback of a flawed rewrite of the objectives of that review undertaken in mid-stream and without public consultation. This skewing of the objectives threatened to undermine the integrity of the entire copyright review process. MBIE, and the Minister, are to be congratulated for listening to the voices of concerned stakeholders by withdrawing the current paper so that any potential revisions to the objectives can benefit from stakeholder input.
Although the copyright review process has already been underway for a couple of years, the stakes are such that it is important to take the time needed to get this right. Copyright law revisions do not occur often and are usually drawn out owing both to the extent of the economic stakes involved and the range of differing views on the issues. In particular there is the usual tension between copyright creators and copyright-creating industries (publishing, music, film production, etc) that seek to protect the revenues generated through content creation by limiting exceptions and penalizing piracy, and industries that use content for a variety of purposes (educational institutions, internet platforms, social media and content aggregators) who prefer to do so by paying as little as possible (in fact preferably nothing) for the content they use by expanding copyright exceptions and in some cases being able to turn a blind eye to content theft with few if any consequences.
The process formally started in November of 2018 when MBIE issued an Issues Paper that laid out the background, the issues at play, the terms of reference and objectives for the review, seeking public comment and input. Following the public input and consultation process which closed in April 2019, the next step would normally be to evaluate that input and formulate recommendations or options, to be presented in an Options Paper that would be subject to Parliamentary and further public review. However in November of 2019, part way through the process of evaluating input, MBIE issued another paper, a 30 page revised Objectives Paper, MBIE’s approach to Policy Development, that changed the objectives of the review. Although wording changes were few, they appeared to reflect a mindset that was worrisome for rights-holders suggesting the changed objectives could lead to potential negative outcomes. There was a subtle shift in the emphasis of the objectives away from incentivizing creativity to instead focus on supply of creative works. There were also suggestions that copyright law should play a role in determining the economic balance between individual creators and the industries that promote creative content, instead of the current practice of freely negotiated contracts. Back in May, I prepared a detailed commentary on the revised objections for NZ Content Café (here). My conclusion was the following;
“What is the sum total of all this tinkering with the objectives of the Copyright review? Why go through such a lengthy process to issue a new 30 page paper (full of dubious premises) prior to producing the Options? Is it to lay the foundation for a series of recommendations that will end up gutting the traditional copyright system and greatly widen exceptions? The tone of the paper and the shifts in emphasis suggests that this may be the case. One hopes not but perhaps MBIE’s attempt at transparency has revealed more about the mindset of the drafters of the document than was intended.
In its conclusion, the MBIE paper states that “Objectives will be used later in the review to assess options for addressing problems with the status quo”. That is why it is very important to get the objectives right before the Options Paper is published. If the foundation for building policy recommendations is not level, then the structure that emerges will likewise be tilted and unstable. Further consultation on the objectives before the Options Paper is produced would seem to be highly advisable.” (emphasis added).
I am sure that others also made the same point and I’m delighted to see that this is now what is going to happen.
There is still a long road to follow before MBIE, New Zealand stakeholders and legislators will be ready to develop and act on recommendations for updating the NZ Copyright Act. A review is needed in order to take into full account the many changes to copyright practice and use that have occurred in the digital age while still respecting the fundamental premise of copyright. As this review proceeds, it is reassuring to know that the review process will now be able to benefit from full stakeholder input and consultation throughout, including on the all-important issue of determining the objectives of the exercise. Withdrawing MBIE’s Revised Objectives paper was the right step to take in helping make this happen.
© Hugh Stephens 2020. All Rights Reserved.