Fair use a copyright exception worth taking on
Industries that rely on copyright law comprise a decent chunk of New Zealand’s economy. Think of software and video game developers, publishers, digital media, design, and film and video, among others.
Some people argue that if copyright law was strengthened even more, for example, by increasing the term of copyright protection, more investment would flow into those industries with a resulting increase in profits and jobs.
The United States, the largest exporter of cultural material, maintains that more protection for copyright is good.
Indeed, one of the requirements of the ill-fated Trans Pacific Partnership agreement was that New Zealand had to extend copyright protection by 20 years (from the life of the author plus 50 years, to life plus 70 years).
Put into context, if a 22-year-old pens lyrics to a song and she lives to 82, those lyrics will be protected by copyright for 110 years under our current law or 130 years should it be extended.
Too much of a good thing is not necessarily good. Cars and roads are good for an economy, but too many cars and roads get clogged. Why then are the copyright industries in the US flourishing when its laws are stronger than New Zealand?
One reason is the scope of protection in the US is narrower. In particular, the US has fair use, New Zealand does not.
Fair use allows for limited use of copyrighted material without acquiring permission from copyright owners.
A biographer quoting from her subject’s letters, reproductions of “thumbnails” of images (where the images are much smaller and poorer quality than the originals), allowing works protected by copyright to be used in parody are all examples of fair use. It is not, as some argue, a pirate’s charter. If it was, the US creative industries would have crumbled long ago.
You often hear people saying we need to create the next Google in New Zealand.
The irony is that Google could never have started in New Zealand because it would have been sued out of existence. Google (and other search engines) work by copying websites, which is copyright infringement in New Zealand but permissible in the US under fair use because the copying was transformative and of immense public benefit.
Why do we continue to insist that our businesses have one hand tied behind their backs when they try to compete on the international stage?
New Zealand society is suffering through lack of a fair use exception.
For example, researchers in New Zealand cannot text or data mine works protected by copyright even when they have paid for access to the material. Text and data mining is the use of automated analytical techniques to analyse text and data for patterns, trends and other useful information.
Indeed, the ability to text or data mine is considered so important that the UK created an express exception.
Educational institutions here, despite paying tens of millions of dollars a year to copyright owners, are short-changing their students as they cannot use some materials protected by copyright in their teaching as teachers in the US can do.
Not surprisingly, the Australian Productivity Commission, in its December 2016 report, Intellectual Property Arrangements, recommended that Australia adopt fair use. New Zealand would do well to follow Australia’s lead.