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Copywrongs
By Steven | April 7, 2012
It seems that pretty much all the discussion about copyright these days is about the new online infringement laws. But I want to talk about another copyright issue that I think poses, on paper anyway, a bigger threat to free speech: the surprisingly narrow reach of our fair dealing defences.
My impression is that the only people who really take copyright seriously are film-makers and book publishers, because if they fail to get a copyright clearance, there’s so much invested that the copyright owner has them by the short and curlies.
On one level, of course, this seems fair enough. If you put in the creative work, you should be able to reap the rewards. There’s a powerful (though not undisputed) case that authors, for example, will be less likely to write and publish books if you or I could whip out, buy a copy, photocopy it, and flog off the pirated versions at whim. If that happened, the world would be a poorer place without those books. Looked at in that light, you can see copyright protections as bastions of free speech: they incentivise speech by rewarding it, and expand the diversity of speech available to the public.
Of course, looked at in another light, copyright laws are an attack on free speech. They seriously inhibit the flow of information by locking up vast quantities of material in boxes that we need copyright owners’ permission to open. One upshot is that information that might be important in the public interest – might be momentous news – might be in those boxes.
There’s one good answer to that concern. Copyright doesn’t grant ownership of the information itself. It just protects particular ways of expressing it. So while the person who uncovers and writes the first story about a corrupt politician has the right to stop anyone reproducing that story verbatim, she can’t stop anyone else from revealing the information, provided they use their own words.
…for what is protected there is the right to express and receive ideas and opinions. Section 14 does not provide a guarantee of a right to appropriate someone else’s form of expression. “Freedom of expression” does not mean freedom to copy the form in which authors have expressed themselves and without consent having been given. (TVNZ v Newsmonitor Services Ltd [1994] 2 NZLR 91)
I can’t see how this works. Section 14 includes the “freedom to… impart information and opinions of any kind in any form”. On the face of it, that includes the form in which it was originally written by someone else. Copyright laws might well be a demonstrably justified limitation on freedom of speech, but they are a limitation.
What about fair use? In New Zealand, our fair dealing defences are much narrower than the American “fair use” defence, though many don’t seem to realise that. They protect the use of extracts of copyrighted material for the purposes of reporting current events, or for criticism or review (see s 42 of the Copyright Act 1994).
That sounds fairly wide. But it’s not. Restrictions abound. Often there must be “sufficient acknowledgement” of authorship. The criticism defence only applies to criticisms of a work (and not, for example, of a person or a policy). The current events reporting defence doesn’t apply to photographs. And “current events” has been construed narrowly. Satire and parody don’t seem to be covered.
News, criticism and satire lie at the very heart of freedom of expression. They’re getting short shrift from our copyright laws.
First published in NZ Lawyer magazine
Topics: Copyright, Internet issues, NZ Bill of Rights Act | Comments Off on Copywrongs