Project: Copyright Reform

At the last CCANZ Advisory Panel meeting, the panel were keen to ensure that CCANZ had a strong voice in the review, noting the obvious capacity constraints of our project and the importance of maintaining our other projects.

I'm currently starting discussions with some lawyers in New Zealand and Australia to determine exactly what we want to say. I'll report back here as those conversations progress.

In the meantime, does anyone have any suggestions for what CCANZ's recommendations should be?

Hi Matt, all. A few preliminary thoughts.

1. Waiver of copyright

One topic to put on the agenda is introduction of a copyright owner's right to waive copyright. Currently the ability to do this under New Zealand law is questionable. This creates potential problems for CC0 adoption, as the primary waiver component might be ineffective (I know there's a licence fall-back but let's ignore that for now).

Waiving copyright is complicated by the existence of statutory "moral rights" that vest in the author of a work, regardless of whether the author is the copyright owner. One reason for this is that the duration of moral rights matches the duration of copyright in the applicable work. There are, however, potential solutions to this complication. For example, a new copyright owner's right to waive copyright could be qualified so as only to arise when the copyright owner is the sole author or where the author(s) (if different from the copyright owner) have waived all moral rights under the Copyright Act. No doubt there are further complexities that would need to be worked through.

1. Copyright in databases

There is uncertainty in relation to certain issues relating to copyright in databases. If possible, statutory clarification would probably be helpful.

1. Fair dealing

Many argue that New Zealand law should adopt a US-style fair dealing defence to copyright infringement. This is particularly important in the digital / remix age.

These are just some preliminary thoughts. There will of course be many other issues to work through.

Cheers
Richard

I'm not sure about NZGOAL's status, but it would be good to set the same principles for government (including educational) data and content into the copyright legislation.

An automatic CC-0 / CC BY (or equivalent) for published government data and information?

AND educational resources. Its worth a crack!

From a GLAM perspective:

1. Copyright in Historic Photography

Tidying up the transitional arrangements for historical photography. The drafting of the current 1994 Act is confusing. See Geoff McLay's working paper “Working Paper 2: Strategy and Intellectual Property – Scoping the Legal Issues” a report for the National library of the National Digital Strategy, pp1-51

1. Exceptions

Including Museums into the Libraries and Archives exceptions. http://nzcommons.org.nz/copyright-for-libraries-museums-and-archives/ and http://www.ip-watch.org/2015/12/10/wipo-copyright-committee-hears-case-for-exceptions-for-museums/

1. Orphan Works exceptions / scheme

Extension of copyright duration will inevitably lead to greater numbers of orphan works. Government should investigate an orphan works exception for GLAMs similar to the EU. Any such scheme should include stand-alone artistic works. The EU scheme currently excludes those. If Te Papa figures are anything to go by the majority of orphan works in museum collections are stand alone artistic works.

If statutory damages are also instigated, a balanced approach might see the public provided with an option to licence orphan works via a government run scheme similar to the UK. https://www.gov.uk/guidance/copyright-orphan-works. This would protect the user and ensure that orphan works were able to be reused in commercial products.

There are a few considerations here. One is, would submitting to the review count as "political lobbying"? Something that the OERF, as a registered charity, and CC ANZ as a subsidiary project, are not allowed to do.

Putting this aside, there are two approaches that a CC ANZ submission could take. One is to put forward some modest reforms that might realistically be included in an ammendment. The other is to start from first principles, imagining that copyright is a new law being proposed. Would the commons movement support such a law being brought in at all? If so, what considerations and specific proposals would the commons movement want included in such a law? Keeping copyright a civil rather than a criminal matter would be one example.

Of course, it doesn't have to be an either/ or. A CC ANZ submission could start with a first principles discussion, then move on to the sorts of specific proposals others have put forward here. But I approach this sort of review process as a form of negotiation. In a negotiation, one should always start by stating what one really wants, and let the other side push back towards something "realistic" ("be realistic, demand the impossible!"). I've found that when I start by asking for only what I expects to get, I usually won't even get that much, and sometimes I've been surprised what I can get by confidently making a case for it.

On the lobbying issue: we've discussed this, and we'll be careful about what sort of activities we engage in. The main restriction here comes from the OERF as an NZ registered charity. The restrictions on lobbying from CCHQ apply when affiliates speak as / on behalf of CC, the US charity, and not when they speak as the local affiliate org. This hasn't always been clear, though was clarified a few years ago.

Regardless, it's something we take seriously.

I'd like to add another suggestion:
* copyright should only apply to commercial use - a summary of the discussions within the CC 4.0 process on distinguishing "commercial from "non-commercial" could help to clarify what's meant by this

Just as a process suggestion, the Context Box at the top of a Loomio discussion is editable, and could be used to aggregate the suggestions made for points to be included in the review. I've made a start on this

Quick progress update: as the content of our recommendations are fleshed out, we've been talking with our Australian colleagues (from CCAU and the Australian Digital Alliance), as well as local lawyers and like-minded organisations. I'll keep you updated as this progresses - it's all relatively introductory at this point.

The review is likely to take place in early 2017 (as far as I know), though the issues involved are quite complex, so we're going to seek to maintain momentum.