In law, you have the rule, and then you have the exception to the rule. The rules in copyright law have, and always have had, exceptions that serve the public interest. Given that the rights granted under copyright law have become incredibly strong (e.g. the copyright term has gone from 14 years to lasting successive lifetimes), their exceptions should be reinforced in order to maintain the “balance” in copyright law that everyone talks about when they talk about copyright. (More on what that “balance” is between, and the actual broader context in which it sits, later).
This week, New Zealand, the US and seven other countries are discussing how copyright exceptions fit into the Trans Pacific Partnership agreement (TPP). Copyright exceptions are instances where the law does not punish copying. Here’s an illustration: only 5% of the world’s books can be “read” by the visually impaired because they have been converted into accessible formats. Under the Copyright Act, the Royal New Zealand Foundation of the Blind is allowed to make Braille copies of books if the copyright owner – normally the publisher – has not done so (which is apparently 95% of the time). This copyright exception is good public policy. The visually impaired need access to knowledge just like everyone else, and if the copyright owner won’t provide that access then the law permits others to do it, even if it means making copies without the owner’s permission. Meaningful, quality exceptions are crucial to the health of any well-functioning copyright regime, as well as to serving the best interests of the public that operates within that regime’s rules.
TPP negotiations on exceptions are now underway, and we know countries’ respective positions because someone leaked the exceptions text about a month ago. New Zealand, Chile, Malaysia, Vietnam and Brunei have proposed the best wording, which would give countries more flexibility in designing their own exceptions to best suit the needs of their populations. The United States and Australia are pushing for the worst wording, which would make it more difficult for countries to create exceptions in general.
Given the timing, I wanted to write about how important copyright exceptions are to the Internet and those who use it.
Copyright, rules & exceptions
It is fair to say that the United States is seeking to export its copyright laws under the TPP. New Zealand’s Copyright Act already reflects US influence, but leaked TPP texts show that further US-inspired copyright laws may be on the horizon – rules that don’t suit New Zealand according to a number of different voices, including that of InternetNZ.
One of the dangers that New Zealand faces under the TPP is that countries will be obligated to recognise stronger economic rights on behalf of copyright owners, but those rights won’t come with the important exceptions that serve the public interest.
Some may find this ironic. An overwhelming majority of copyright academics agree that the US copyright system has its roots in utilitarianism. Copyright was designed as a tool, to be applied towards the laudable objective of advancing social welfare. It was designed to incentivise creators to create works for public’s enrichment. These works would eventually run their copyright course and become the “property” of the public. They would fall into the public domain and be free for all to use. By this time, the creator will have enjoyed the full opportunity to earn from what supposedly incentivized him or her to create in the first place – having exclusive control to make copies to sell, distribute – to do whatever they wanted with their work, subject to certain limitations and exceptions that serve the public interest.
Consider this rule, one of many in the Copyright Act: only the copyright owner can make a copy of their work. If you make a copy without their permission, then you’ve broken the rule. You’ve infringed their copyright. Because you have infringed copyright, you’ll likely be ordered to pay to make up for it.
There are exceptions to this rule because a monopoly over something is a very powerful thing for the State to grant. Like a pressure-release valve, the State creates exceptions to this monopoly when there is good reason to do so; in some cases it would be undesirable for copyright owners to have absolute power over their works. The Internet provides a few examples.
Exceptions are important to the Internet
Why does InternetNZ care about copyright exceptions in the TPP? Because they have proved important to the Internet in the past and we need them in place to protect the open Internet going forward.
In some copyright infringement cases, courts in the United States go through an exercise called “fair use” to determine if the defendant’s copying was an exception to the rule. Google has relied on this legal doctrine to defend its search engine. A number of years ago, it was sued by someone because temporary copies of this person’s website, and the content on it, were made in the search engine’s routine process of webcrawling, caching and snippet-producing in response to a query. Thankfully, the court determined that such “copying” by Google was an exception to the rule – that it was a fair use of the copyright material – and Google search could continue running. The court in particular mentioned the positive public interest impact that search engines have in facilitating access to information.
What would have been the result of this case without the copyright exception? What would the Internet would be like today if search engines had years ago been deemed illegal by their very nature? How many different markets would have never come into being? Would we have less access to information than we do now?
New Zealand does not have an open-ended fair use doctrine. It has a closed set of specific exceptions.
There is an exception for the “transient reproduction of a work”, which probably would’ve produced the same result that fair use did in the Google case. These types of exceptions aren’t just useful to search engines, but to Internet Service Providers and app developers, auction sites and end-users. The Internet works by making temporary copies or “transient reproductions” of data in order to transmit it from point A to point B. New Zealand’s specific exception ensures that copyright owners don’t abuse their power in the digital space by suing anyone who intentionally or unintentionally “makes” a temporary copy.
It is actually unclear under US law whether temporary copies even merit copyright protection, but the US has nonetheless proposed that the TPP give copyright owners power over temporary electronic copies. New Zealand decisionmakers should refuse to accept this nonsensical proposition. In the unfortunate event they do not refuse, it becomes even more important for the TPP to have adequate exceptions to make sure this right isn’t abused in the Internet environment.
Copyright exceptions serve the open Internet well, and they benefit a number of groups and institutions: libraries, schools, the visually-impaired, consumers, businesses and creators. Take a look at the FairDeal coalition – exceptions are important to each member.
Copyright exceptions may seem like an esoteric subject, and it is when you dive deep into the legal business behind it. But the fact of the matter is is that whether your understand the technical side of it or not, you have to show support for good copyright exceptions if you desire an Internet that is more accessible, more efficient and better for the whole. The way the trade winds blow for exceptions will actually shape the way you interact with information online. The largest and most diverse international coalition of civil society organisations to speak on copyright in the TPP to date has indicated support for the New Zealand-led position on copyright exceptions. If you share that view, please take action through the FairDeal campaign. Visit the FairDeal website, where you can follow us on Twitter, like us on Facebook, and actually send a postcard on temporary copies to the Minister of Trade.
 William Fisher “Theories of Intellectual Property” in Steven Munzer (ed) New Essays in the Legal and Political Theory of Property (Cambridge University Press, Cambridge 2001).
 Field v Google 412 F Supp 2d 1106 (D Nev 2006).