The New Zealand Parliamentary Committee on Foreign Affairs, Defence and Trade has posted draft legislation to bring its law into compliance with the Trans Pacific Partnership, as well comments on the legislation, all of which are available here. The following excerpt from the comments submitted by Google New Zealand focuses on the importance of a “flexible and dynamic” copyright exception.
Google believes that in order to promote innovation and creativity, New Zealand should adopt copyright exceptions that allow the market, new technologies and new creativity to evolve. New Zealand needs not only technologically neutral copyright protections, but also dynamic, technology neutral exceptions that allow new, legitimate uses of copyright and services to evolve as technology evolves.
It would, of course, be possible to enact new purpose-based exceptions to solve some of the problems of today, but this would do little to encourage the innovation of tomorrow that is so essential to a thriving digital economy.
A fair use exception of the kind recommended by the Australian Law Reform Commission’s Copyright and the Digital Economy report is one example of a dynamic, flexible exception, but there are other models for flexible copyright exceptions that have been adopted internationally.
Another model is that adopted in Singapore, where the existing purpose-based fair dealing exceptions were retained, but a new, flexible exception was added in 2005.[7]
A similar model to this was recommended by the Australian Copyright Law Review Committee (CLRC)[8] in 1998; i.e. a flexible exception that refers to the existing fair dealing purposes but is also expressed as being available for “any” purpose that satisfies a list of fairness criteria to be set out in the Copyright Act. The CLRC considered that its model was ‘sufficiently flexible to accommodate new uses that may emerge with future technological developments’ and that it also contained ‘enough detail to provide valuable guidance to both copyright owners and users’.[9]
Why now?
In its Copyright and the Digital Economy report, the Australian Law Reform Commission asked whether Australia would have been better placed to participate in the growth of the nascent digital economy had fair use been enacted back in 1998 as was urged by the CLRC[10]
We’ll never know the answer to that question for sure, but it’s a fair bet that the answer would be “yes”.
The fact that fair use is central to the copyright balance in the US has been recognised by the US Trade Representative (USTR):
The copyright system is an engine of free expression and a major building block in the world economy. It plays a critical role in promoting and disseminating American works of authorship, and the balance of rights and exceptions and limitations achieved in U.S. law provides diverse benefits for large and small businesses, consumers, authors, artists, and workers in the information, entertainment, and technology sectors.
A robust copyright framework ensures that authors and creators are respected, investments (both intellectual and financial) are promoted, that limitations and exceptions provide an appropriate balance, and that enforcement measures are effective.
An important part of the copyright ecosystem is the limitations or exceptions placed on the exercise of exclusive rights in certain circumstances. In the United States, for example, consumers and businesses rely on a range of exceptions and limitations, such as fair use, in their businesses and daily lives. Further, under the U.S. Digital Millennium Copyright Act (DMCA), the United States provides safe harbors limiting copyright liability, which help to ensure that legitimate providers of cloud computing, user-generated content sites, and a host of other Internet-related services who act responsibly can thrive online.[11]
The importance of fair use has frequently been recognised by the US Government. As one influential US judge has stated: “Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. To the contrary, it is a necessary part of the overall design.”[12] In addition, Mr. Danny Marti, the US Intellectual Property Enforcement Coordinator at the White House, remarking on the decision of the US Register of Copyrights to publish a new guide to fair use decisions, stated:
The doctrine of fair use is a vital aspect of U.S. copyright law and it is applied regularly in our daily life. I commend Register Pallante and the Copyright Office for producing this important resource that not only helps to make the doctrine more accessible, but also serves to reemphasize the significance of this right as part of our culture. Indeed, it is the combination of a strong copyright system with a right of fair use that encourages creativity, promotes innovation and respects our freedom of speech and expression.[13]
This is a view shared by some major US media companies who routinely rely on fair use. As Ben Sheffner, counsel for the Motion Picture Association of America (MPAA), stated in his 2013 blog post responding to comments about an MPAA brief submitted in litigation supporting fair use:
[W]e do want to push back a bit on the suggestion in some of the commentary about our brief that the MPAA and its members somehow “oppose” fair use, or that our embrace of it in the Baltimore Ravens brief represents a shift in our position. That’s simply false, a notion that doesn’t survive even a casual encounter with the facts. Our members rely on the fair use doctrine every day when producing their movies and television shows – especially those that involve parody and news and documentary programs. And it’s routine for our members to raise fair use – successfully – in court .
…
No thinking person is “for” or “against” fair use in all circumstances . As the Supreme Court and countless others have said, fair use is a flexible doctrine, one that requires a case-by-case examination of the facts, and a careful weighing of all of the statutory factors. Some uses are fair; some aren’t.[14] (emphasis added).
Google shares those views. That said, the precise model for injecting flexibility into the Copyright Act is less important than its function; i.e. that it is flexible and dynamic.
The capacity for copyright exceptions to get out of date was recognised at the time the review of the Copyright Act was deferred in New Zealand, pending the conclusion of the TPP negotiations.
There may be a number of areas where the Act could be amended to make it more fit for purpose in the light of digital technology. For example, it is likely that many of the provisions setting out exceptions to copyright are now out of date with current technology.[15]
A flexible and dynamic exception that is fit for purpose in a digital environment is one that will provide the breathing room for innovation and new uses while ensuring that rights holder’s legitimate interests are protected.
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7 Singapore Copyright Act, Section 35
8 Copyright Law Review Committee, Simplification of the Copyright Act 1968. Part 1: Exceptions to the Exclusive Rights of Copyright Owners (1998)
9 Ibid para 6.08
10 ALRC Copyright and the Digital Economy report para 4.25
11 US Introduces New Copyright Exceptions and Limitations Provision at San Diego TPP Talks
https://ustr.gov/about-us/policy-offices/press-office/blog/2012/july/ustr-introduces-new-copyright-exceptions-limitations-provision
12 Judge Pierre Leval, “Toward a Fair Use Standard,” 103 Harvard Law Review 1105 (1990).
13 US Copyright Office Publishes Guide to Fair Use Decisions, http://www.copyright.gov/newsnet/2015/580.html
14 Ben Sheffner, ‘MPAA and Fair Use: a quick history’ on Motion Picture Association of America: Policy Focus, an in depth look at policies and positions (22 October 2013). http://www.mpaa.org/mpaa-and-fair-use-a-quick-history/
15 Cabinet Paper, Office of the Minister of Commerce. Cabinet Economic Growth and Infrastructure Committee, 2005 CAB Min (05)
