Red Alert

Archive for the ‘copyright’ Category

If we sign ACTA what are we agreeing to?

Posted by on September 29th, 2011

This Saturday in Tokyo, according to reports, New Zealand will sign a controversial trade agreement, the Anti-Counterfeiting Trade Agreement (otherwise known as ACTA) targeting counterfeiters and copyright infringers.

The big questions are what are we signing up to? Will it mean we have to change our laws? And why hasn’t government informed the community of its contents and that we were going to sign it until 2 days before it happens?

A media release issued this afternoon by the government says this:

Cabinet has formally approved New Zealand’s signature of ACTA.  As is normal practice with international treaties, a separate decision to ratify ACTA will be made subsequently, the Minister said.  This would require the Government to make some minor amendments to the Copyright Act 1994 and the Trade Marks Act 2002 and would be subject to the usual ratification process, including public consultation and scrutiny by Parliament.

What minor amendments? What will change?

I have written many posts about ACTA. Here and here. Calling for transparency. That did seem to happen for a while. But now it appears we are moving to sign it. Where has been the public discussion on where the agreement is at?

Will signing ACTA result in New Zealand being required to include a disconnection from the internet clause in our copyright laws? This is despite repeated denials from Commerce Minister Simon Power. And make it extremely difficult to remove. And what else will it require?

Will ACTA will foreclose future legislative improvements in response to changes in technology or policy. Read this post and worry.

One report this week  has said:

Representatives of the U.S., Japan, Australia, Canada, the E.U., South Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland will be at the signing ceremony for the Anti-Counterfeiting Trade Agreement (ACTA), according to Japan’s Ministry of Foreign Affairs.

Countries that have “completed relevant domestic processes” will sign ACTA, the ministry said in a press release. The agreement, which would create international standards for protecting intellectual property, will be open for signature until May 1, 2013, the ministry said.

Public Knowledge, a digital rights group, said the latest version of ACTA contains more protections for consumers than previous versions. Still, the group urged U.S. President Barack Obama’s administration to “make it clear” that ACTA does not change U.S. law, including provisions in the Digital Millennium Copyright Act protecting ISPs and websites from copyright enforcement.

I’ve still got significant concerns.

  • Agreements negotiated in secret don’t make for good law or public policy
  • ACTA contravenes a number of fundamental rights
  • The major parties in ACTA (US and Europe) still don’t agree about whether their laws might need to change, even though provisions in it are incompatible with existing laws

I’d like to hear from our Trade Minister on these issues. And from our Commerce Minister on the domestic implications for Kiwis and our own intellectual property. In the meantime,  until we know what the implications are NZ shouldn’t sign up to it.

We’ve come a long way. Digital copyright for the 21st century

Posted by on August 31st, 2011

Tomorrow is the start date for the controversial new copyright law which provides owners of copyrighted works such as movies, TV shows and music a quicker and easier way to penalise people infringing their copyright via online file sharing

Labour voted for that law. Because at the time we thought it was the best thing to do. We’ve learnt from the experiences and we have moved on.

Today Labour announces copyright policy which significantly shifts our position.

If elected, we will introduce a Bill within 90 days to remove the termination clauses from the Copyright Act. Those clauses, which give the District Court the ability to impose account suspension as a remedy for infringing file sharing – can’t work in the long term.

Right now they are inactive in the law and can only become active if the Minister decides to make them so. We negotiated this compromise position with the government. And this was our reason for supporting the Bill. The Bill was better for this compromise. Without it people would be risking account suspension from tomorrow. But we are totally committed to repealing this aspect of the legislation if we win election.

Labour will also undertake a review of the Copyright Act, with the aim of introducing a new Copyright Bill within 18 months that updates and extends the framework for digital copyright in New Zealand.

The first phase of the review will be to commission an independent analysis of the problems with the status quo from an eminent expert, such as the review Professor Hargreaves has recently conducted for the UK Prime Minister, and then consultation on a draft Bill before it is introduced.

New Zealand’s Copyright Act has been half-heartedly adapted for the Internet age.  Instead of more piece-meal reforms, we need to transform our digital intellectual property framework, to bring it into the 21st century and to promote innovation and growth in our economy

Labour’s approach to copyright will promote our creative industries and put citizens interests at the centre of the policy debate.

We will have more to say about this in the launch of our ICT and innovation policies.

This is a debate is about shifting power, access to information, outdated business models and the immense potential of the Internet to change our world. Most politicians in our parliament don’t get that. Some are starting to.  Nobody really knows what to do about it yet. But Labour is committed to having a go. The legality of the Irish three strikes system is currently being investigated after 300  users were wrongfully being sent a “first strike” letter (due to a ‘software failure’) accusing them of sharing music.

The last Labour Government tried to address the growing problem of Internet piracy by requiring Internet service providers to police illegal downloading and to have a policy for terminating the accounts of repeat offenders.

We acknowledge the commitment of that Labour Government to ensuring that the work of New Zealand artists was valued, allowing them to maintain control over their own works. This is a fundamental principle.

But the digital environment has changed our world.  The old business model – where big companies had control over the distribution of creative works – doesn’t apply anymore.  Governments have to recognise that their citizens are hungry for information and creative material via the Internet.

We’ve learned from our experience in originally passing Section 92A. Labour no longer believes that termination is appropriate as a remedy for infringing filesharing. Many parliaments around the world are grappling with these issues right now and none have got it right yet.  The solutions are bigger than a re-write of one section of the current Copyright Act.

What we are seeing is a digital revolution and it is our responsibility to ensure there is a balanced environment for creators and consumers in our country.  New Zealand’s legal and regulatory framework needs to enable creative expression and the industries that rely on it, not just penalise people for accessing information.

We believe in this country becoming a nation of makers. We must invest in our own economy. Invest in content. Invest in innovation and decide how we want to look in 5 or 10 years time.

Labour will properly address the issues of copyright in the digital age – and we’ll involve New Zealanders in that discussion.

Explaining Netflix to Simon Power

Posted by on August 10th, 2011

Commerce Minister Simon Power drove through the Copyright Bill a few months ago. It gets enacted on 1 September, but as of tomorrow illegal filesharing will count towards penalties. Labour supported it in order to keep the termination clause inactive.

We will be releasing new copyright policy soon.

Today in the House Simon was asked by Gareth Hughes from the Greens and myself what he was doing to promote alternate business models which meant people could download material legally without being pinged by the new copyright law.

Nothing was the answer. Then he was asked about Netflix. What? said Simon. Never heard of it.

Well, he should have, He’s the Minister for goodness sake. He’s clearly not interested in the issues and unconcerned at the consternation by thousands of people out there who are worried they, their children or their organisations (schools, libraries, universities) will become criminals for seeking out online material that just isn’t available legally.

So here’s some info for Simon on Netflix. It’s a video and game streaming service delivered online. It’s got more than 23 million subscribers in the US and Canada.

 It’s not available here. But it’s overtaken Bit Torrent in the US for downloads. Bit Torrent is one of the major sites where you go to get content and download it for free (and illegally).

At Netflix you pay. Not much, but you pay (A streaming-only, all-you-can-watch monthly Netflix subscription costs just US$9). And it’s doing really well. It’s a new business model and its taking off. Just the sort of thing we need in NZ.

Why can’t we? Well one reason would be the ignorance and disinterest of this government in how technology is changing the way people do things.

If we were in government we’d be pushing hard to make NZ an attractive place for a business like Netflix. Giving people a real alternative to downloading films and other content illegally for free. Now’s the time to be doing it. But Simon Power didn’t even know it existed.

So much for a forward thinking switched-on government.

Gareth asked a bunch of questions about what the government had done to prepare people for the new copyright law. Nothign much was the gist of the answers. Simon Power #fail

InternetNZ (Internet New Zealand Inc) has launched a new website to help people and organisations get ready for the new copyright law

One of the most powerful of speeches…

Posted by on July 3rd, 2011

Late last week I spent a day and a half at NetHui in Auckland. Couldn’t make the full 3 days. It’s a new initiative, organised by InternetNZ.

It will be an annual event. That all MPs should attend and all of you.

It was all about the internet. What it means for us. What the opportunities and the scary challenges are. And that it’s about equality.

Lawrence Lessig was the keynote speaker.

Some takeout messages:

  • Kids, dropouts, outsiders have been the innovators and have developed the major changes on the internet
  • The internet is about reviving a culture of passive consumption to re-creating a culture of sharing, participation and making new stuff.
  • The need for truth tellers about the network.
  • The enormous challenges for policy-makers and law makers. One of which is for politicians to move away from a culture of being funded  and therefore influenced by private interests. To halt law-making by lobbyists. And consider other ways.
  • How NZ could become a beacon of light in showing the way forward on many of the issues that arise because of the internet

If you watch nothing else for a while, watch his speech. It’s on Youtube in 3 parts.

Part 2 is here

Part 3 is here

It’s time for a complete review of our copyright laws

Posted by on June 4th, 2011

I agree with this.

It’s time for a complete review of our IP laws in NZ.

UN Report Says Internet Three Strikes Laws Violate International Law
Friday June 03, 2011
The United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has released an important new report that examines freedom of expression on the Internet.  The report is very critical of rules such as graduated response/three strikes, arguing that such laws may violate the International Covenant on Civil and Political Rights (Canada became a member in 1976). Moreover, the report expresses concerns with notice-and-takedown systems, noting that it is subject to abuse by both governments and private actors.

On the issue of graduated response, the report states:

he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of “graduated response”, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called “three strikes-law” in France and the Digital Economy Act 2010 of the United Kingdom.

Beyond the national level, the Anti-Counterfeiting Trade Agreement (ACTA) has been proposed as a multilateral agreement to establish international standards on intellectual property rights enforcement. While the provisions to disconnect individuals from Internet access for violating the treaty have been removed from the final text of December 2010, the Special Rapporteur remains watchful about the treaty’s eventual implications for intermediary liability and the right to freedom of expression.

In light of these concerns, the report argues that the Internet disconnection is a disproportionate response, violates international law and such measures should be repealed in countries that have adopted them:

The internet and the future: the music industry

Posted by on April 17th, 2011

This is the first of a series of posts on how the internet is shaping our future. Imagine if a consortium of internet companies decided to buy out the music industry.  Get rid of labels and sell music direct to consumers, cheaply. How might that change the nature of things?


New Zealand’s passing of copyright law this week has sparked a fresh round of intense debate and scrutiny on how to address  the behaviour of a large number of New Zealanders on the internet who are illegally downloading music, movies and other content.

Many people either do not know they are downloading illegally or don’t feel they are doing anything wrong.

And for many, its the easiest way to get access to what they want to hear or watch.

Unfortunately,  the creators of that content (the artists) miss out on payment.  The traditional distributors of the content, the movie studios and music labels wield considerable influence in New Zealand and around the world in convincing governments to pass strict laws to prohibit filesharing. But they are slow to develop new ways to distribute their content easily and legally  to people via the internet.

But they’re not slow to use their muscle to protect their outdated business models.

What do they expect people to do? The pressure is mounting as we’re all seeing by the intense reaction to the Copyright Law this week.

What if things were to change? Would the need for such copyright laws still be necessary if people could easily, legally and cheaply access what they wanted, when they wanted it.

Consider this, an extract from a piece written by UK-based open government and open source advocate  Glynn Moody

… the music industry is economically quite small and unimportant compared to the computer industry. And yet somehow – through honed lobbying and old boy networks – it wields a disproportionate power that enables it to block innovative ideas that the online world wants to try.

On a rational basis, the music industry’s concerns would be dwarfed by those of the computer world, which is not just far larger, but vastly more important in strategic terms. But instead, the former gets to make all kinds of hyperbolic claims about the alleged “damage” inflicted by piracy on its income, even though these simply don’t stand up to analysis.

… how about if Google *did* buy the music industry? That would solve its licensing problems at a stroke. Of course, the anti-trust authorities around the world would definitely have something to say about this, so it might be necessary to tweak the idea a little.

How about if a consortium of leading Internet companies – Google, Microsoft, Yahoo, Baidu, Amazon etc. – jointly bought the entire music industry, and promised to license its content to anyone on a non-discriminatory basis?

At the very least, the idea ought to send a shiver down the spine of the fat-cats currently running the record labels, and encourage them to stop whining so much just in case they make the thought of firing them all too attractive to the people whose lives they are currently making an utter misery….

It’s quite possible this is based on Google spin. But it’s certainly interesting to contemplate. I’d like to see a major shake-up in both industries.

And I think governments have a responsiblity to ensure that consumers are able to access content: music, movies, entertainment legally and in a competive environment where they have choice and fair prices. And where there is a thriving environment for the creators (those inside New Zealand). The debate needs to be about how we make that happen. Yes?

Urgency – when is its use a constitutional outrage? Part 1

Posted by on April 17th, 2011

I have been observing commentary about the passage of legislation under urgency as if any use of urgency is a constitutional outrage.  Admittedly we politicians have only got ourselves to blame for this.  I mean how many times have we railed against the government for pushing legislation through in the dead of night? I am as guilty of that as the next MP.  However there is only one use of urgency that truly meets the constitutional outrage test and that was evidenced last week by the introduction and passage of the Canterbury Earthquake Recovery Bill through all its stages.  What it doesn’t include is the passage of the remaining stages of bills that have been introduced, referred to select committee, changed to meet some concerns of submitters and referred back to the House.

This was the case of the Copyright amendment.  A bill was introduced; it was referred to the Commerce Committee; we heard extensive submissions; we talked to the Minister; we compromised; we referred back a better bill than the one that was introduced.  Once it was back in the House it was required to sit on the table for three days, which was when it could have the Second Reading.  The Committee Stages take place on the next sitting day.  And the Third Reading takes place on the next sitting day after that.  Passing legislation through these stages under the terms of an urgency motion is no more a constitutional outrage than agreeing to lift the House early because we have completed the business of the day at 9.50pm.  I have argued that the Standing Orders committee should change the use of the word Urgency in these circumstances to an “Extended Sitting Hours” motion.  An Urgency motion would then remain for the disturbing example that the Canterbury Earthquake Recovery Bill represents.  I will address that Bill in my next post.

I want to comment on those who have attacked Labour for its position on the Copyright legislation.  I am mindful of the fact that Labour introduced the original s92A that required termination to be the end point of a negotiated protocol between the ISPs and the rights holders.  The agreement wasn’t reached and the incoming National government put the provision on hold while debate was had about how they would address it.  They came to the conclusion that termination would remain the end point.  Labour came to a different conclusion after listening to the submissions. 

I am floored by the attitude of those who have completely ignored the reality that we have listened and altered our position.  In opposition we are not the decision-makers, but we have influence, as is proved by the change to the legislation we achieved – and I take my hat off to Clare Curran, a first term MP, who stared down her own Party’s previous position and the government’s position to boot. 

There are those who don’t agree with the legislation that was passed.  Fine.  Use the time between now and the election to use your influence as Party members or as voters to persuade political parties to re-visit their position.  But don’t blame Labour for voting for an agreed compromise rather than letting the bill remain in the form it was in when introduced.  And don’t use the fact that the remaining stages were passed under an urgency motion when it meant nothing more than extended siting hours.

No New Zealander can be disconnected from the internet

Posted by on April 14th, 2011

Today a new Copyright Law was passed in New Zealand. As a result, no New Zealander can be disconnected from the internet for illegal file sharing.

Labour negotiated with the Government on this Bill. We could have chosen not to and simply opposed it.

If we had, today I would be lamenting that New Zealand now had a law where people could, and would be, disconnected from the internet.

High moral ground. But empty ground.

Being in Opposition isn’t always about opposing. Sometimes you can make an impact on laws. There are times when negotiating an outcome that improves a law is better than taking a high moral stand and ending up with something that you, and many in the community, fundamentally can’t live with.

That’s what Labour’s done.

There’s been an intense reaction to the Bill in social media. I acknowledge, understand and am sympathetic to many of the criticisms and concerns raised by people who are deeply discomforted by having a termination provision in the law even if it is on ice.

The government’s bottom line was to have termination in the Bill. Ours was to not support it. The compromise position was to leave it in but require the Minister to put what’s called an Order In Council into effect to switch it on. This is very  unlikely to happen.

The onus is now on the creative industries to prove there is a case to terminate access and that the notice system is not working. Rather than oppose it outright, we preferred to compromise to ensure New Zealanders are not denied access to the internet.

Account suspension remains in the bill and could theoretically be used in the future, but any Minister who implements termination will have to wear the consequences. It won’t be a Labour Minister.

Evidence before the select committee strongly indicated that sales of music and movies on the internet were going up, not down, and that the industry remains viable and strong, if needing to change the way it distributes material.

The fundamental issue here is why so many people illegal downloading and sharing material. This law will hopefulyl have the impact of educating more people who are illegally filesharing and don’t understand it is illegal. I would hope that New Zealanders do not condone illegal filesharing.

I strongly support and stand by Labour’s position. We are not the government. We could have remained on the sidelines and thrown stones. That would have meant a bad law and New Zealanders facing disconnection. We are fundamentally opposed to internet disconnection.

So we compromised. I think New Zealand is in a better place today because of that.

Here’s what I said in Parliament last night in the second reading

Remaining alert on the TPP

Posted by on November 21st, 2010

John Armstrong wrote a good piece in the Saturday NZ Herald on Key’s trip to Japan last week for APEC and talks on the Trans Pacific Partnership (TPP).

I would have missed it because was consumed with other matters, so thanks to Eddie at The Standard for your piece on it.

I first wrote about the TPP on Red Alert in May.

My interest is in NZ ensuring it doesn’t sell out our ability to control out intellectual property, particularly in the digital environment. New Zealand produced content is our economic edge. It’s also our identity.

I remain alert. And thanks for the funny bits in your piece John.

PS: The TPP is a grouping of nine countries – New Zealand, Brunei, Chile, Singapore, Peru, Vietnam, the United States, Australia and Malaysia –  currently negotiating a free trade pact which would phase-down tariffs to zero in all sectors. Japan is thinking about joining up.

The politics of social media

Posted by on November 6th, 2010

I think about this quite a lot. The rise of social media such as facebook, twitter and blogs and what it means to have  more people  communicating with each and building new online communities. Mostly it’s a good thing.

Many politicians, such as myself, are increasingly using social media to communicate, test ideas and have conversations with people across a broad range of backgrounds, interests and political attitudes.

I find it interesting, exciting, thought provoking and a bit of an outlet for my own views, but also as a way of just building new friendships and adding to my knowledge.

But it can also be dangerous. And it’s this that I want to explore your views on.

What happens when, in the cut and thrust of election campaigning, all the stops get pulled out and the political trolls use anything that a politician (or aspiring politican) has said on social media (potentially) taken out of context to discredit them.

The US mid term elections has again put this issue in the spotlight. I came across this piece today via Twitter:

…today’s generation of future leaders has grown up in an era when letting one’s guard down for one’s Facebook friends to see is an afterthought.

Ms. Ball, a Democrat, was stunned when she found out that six-year-old party pictures were circulating online. In them, she was wearing a Santa cap and provocative lacy hosiery while holding and putting her mouth around a sex toy. The story went viral, getting attention from news media outlets as varied as Gawker and National Public Radio.

“I think I was the No. 3 most-Googled term in the whole world over some stupid gag I played when I was 22 years old,” Ms. Ball said in a phone interview on Wednesday, the day after she lost her election.

While her opponent already had a comfortable advantage in the Republican-leaning district by the time the pictures came out, Ms. Ball’s experience raises the question of whether American culture will ever evolve to the point where voters tolerate pictures of future leaders in various states of inebriation and undress.

Ms. Ball, a certified public accountant, has used the experience as an opportunity to warn of a potential chilling effect on tomorrow’s leaders. Candidates, she argued, should not be shamed out of a race because of mistakes made in their youth. “I had a whole lot of people who were older than me saying they were feeling grateful that Facebook and digital cameras weren’t around when they were growing up,” she said. “I am not the only person with stupid photos out there, and I would hate to have some young man or young woman think, ‘I can’t run for office because I did something stupid at a party however long ago.’

This may not be the best example. The description of her behaviour didn’t sound that sensible. Let alone having her photo taken. But people do silly things in context. And is it our business? Social media makes those events more visible. And when the media spotlight comes on there can be a shock horror reaction by the public.

We’ve certainly seen that in the US. Will we see it here?

Because politicians are held accountable to a different set of behaviours? Or because the mere fact you are a politician, or standing to become one makes your behaviour suspect? I’m interested in your views.

And as a postscript: This movie has recently been released in the States and NZ. The Social Network is  the story of facebook. I had a bit of a look tonight but I’m not sure you can legally purchase it online yet. You’d think you’d be able to! Maybe someone can help me with that. If you can’t then I think it’s a travesty and it’s the movie studio’s own fault if they’re not across what people are doing in the real world.

Here’s a taste:

No NZers will have internet access terminated in Copyright Bill

Posted by on November 3rd, 2010

Let’s be very clear about this. If Labour and the National Government had not agreed on a compromise around the temination clause in the Copyright Bill, we would have a piece of legislation coming back to the House which could cut off NZers  internet accounts for six months.

Labour would have opposed the Bill.  It might have been a high moral stand but it would have resulted in a bad law.

A law that would be able to require people to be disconnected because they have shared files. It wouldn’t have been easy to achieve and would have required a convoluted journey of receiving several notices by mail from your internet service provider (such as Telstra Clear, Telecom etc)

You may have been taken to the Copyright Tribunal. Or the rights holder (of the film, music clip or video game) that you downloaded may have decided to make an example of you and had the matter referred to the district court.

No matter that you had downloaded whatever it was for your own enjoyment, not to profit from it in any way. The court could order you to be disconnected.  Never mind if you were 12 years old and part of a family that relied on the internet for all kinds of things. Or if you were elderly and lived alone and used email and the internet to communicate with the outside world.

In coming years the internet will become increasingly more essential in all of our lives. Disconnection is a disproprotionate remedy for file sharing.

A Bill that enacted a termination clause would have seen termination used as a remedy. This way it wont. Unless the copyrights holders manage to push for a review and the Minister of the day decides to enact termination as a remedy. In which case it is on that Minister’s head.

National’s position was immoveable. Termination would remain in the Bill. Labour’s position was that we opposed it.

In reaching this compromise, Labour believed it was better to have a piece of legislation that did not use termination as a remedy even if it remains in the Bill as a future possibility.

We would prefer it wasn’t there at all. But we also believe this is the best possible outcome we could achieve as the Opposition. This is not our Bill. It was originally our Bill (Section 92A) and despite the good intentions to make it work, it resulted in a grand stoush between the different parties which required a rethink. Labour pushed for and supported that rethink. What we’ve ended up with is better. If not perfect.

We are concerned that the government appears to have said today there will be a two year review of the decision not to enact the termination clause. This is news to Labour. It wasn’t put before the select committte and you should note that there will be an election in NZ before that two year period is up. Labour would not support a govt-led review and this could become an election issue.

But we still have concerns about a number of aspects in the Bill and believe there could well be room for further compromise.

A couple of comments:

It was always my view that a fine for copyright infringement was much more appropriate than termination of internet access. The view expressed in the commentary to the Bill that an award made by the Copyright Tribunal could include a punitive element and not just be compensation-based is justififiable.

We believe and hope that the notice and notice system established between ISPs and rights holders will be sufficient for the bulk of cases.

We do however retain concerns that the process will be too cumbersome and bureacratic and that the costs involved in setting up and maintaining a process that identifies and makes contact with potential infringers will be cumbersome.

We note the concerns raised by some around  section 122MA of the Bill around where the burden of proof lies for infringement. We are keen to talk further with those who are concerned about this.

On balance we have tried to convince the government to strike a balance between the rights of copyright
holders to have their intellectual property rights protected, and the reality that the Internet has now allowed far greater access to copyrighted works through file sharing.

And finally, it’s time for the debate to shift.

It’s time to move on from the issue of penalties for copyright infringement to looking at how we as a country can support new business models which enable our innovators and creators to benefit from their creativity and to control and distribute their own content to boost our economy and provide widespread access to information and entertainment. That’s what I want to see. Don’t you?

Can the internet be regulated?

Posted by on October 14th, 2010

Simon Power today announced a Law Commission review of the regulations around how the internet interacts with the justice system.

It’s timely to have a public discussion.

The Law Commission will treat the issue seriously, There are good people leading it. They have more than a year to report. But there are some big issues to discuss and I worry that they may not be able to if the terms of reference are too narrow.

If this inquiry is all about shutting down the likes of Cameron Slater (aka Whaleoil) who delights in flouting the name suppression laws then it’ll be a great shame and will create more problems than it tries to solve.

Slater regularly posts the names of people accused of various crimes which he deems to be not worthy of name suppression. He’s on a crusade. He describes himself as a citizen journalist. Others have more colourful names for him.

I don’t like his style. I try not to read his blog. Though sometimes I do. But I’d hate to see an inquiry happening just because of him.

I do believe there’s an important discussion to be had about one set of standards that applies across different media. But it’s not just about new media vs conventional media.

As David Farrar at Kiwiblog pointed out this afternoon one set of rules for conventional media (print and broadcast media) does not exist now. So the issues are complex.

People’s attitudes and behaviours are changing rapidly with the rise of new media. The discussions and debate around copyright and filesharing have shown this.

We need good law. And we need it to reflect where people are at.

Here’s what Simon Power said in question time in Parliament today. I’m looking forward to contributing to the review.

3. PAUL QUINN (National) to the Minister of Justice: Has he recently referred any projects to the Law Commission; if so, what?

Hon SIMON POWER (Minister of Justice) : Yes; earlier today I asked the Law Commission to undertake a review regarding interaction between the Internet and the justice system. It is my view that the law must keep pace with technology, and that we must have one set of rules and ethical standards for all news media. It is my view that that may not be the case at present.

Paul Quinn: Why has the Minister referred this review to the Law Commission?

Hon SIMON POWER: I am concerned that the lack of regulation or professional or ethical standards for bloggers and online publishers has created a bit of a Wild West in cyberspace. The specific issues I am concerned about include how trials can be potentially prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders, and republication of a libel.

Is this the future for music distribution?

Posted by on August 9th, 2010

The changing dynamics of how artistic content is being delivered and promoted on the Web.

For those of you who have an interest, this is a live issue.


Why software shouldn’t be patentable

Posted by on August 8th, 2010

Here’s another one of my posts that may make some of you yawn.

Will keep it short. I’ve just read a really good piece on why software should not be patentable. Thankfully, NZ law is going in that direction (read earlier piece about Simon Power sticking to his word supporting the Commerce Select Committee recommendation to exclude software from being patentable) though there may still be some intense discussion to come around the regulations that accompany the legislation.

Why do I care about this? It’s about innovation. And nurturing and supporting the NZ ICT industry which I believe has the capacity to help drive our country’s economic future.

The piece, called Why we need to abolish software patents, is written by Vivek Wadhwa an entrepreneur turned academic from UC-Berkeley, Harvard Law School and Duke University. He argues that fledgling startups have  to worry more about some big player or patent troll pulling out a big gun and bankrupting them with a frivolous lawsuit than they do about someone stealing their ideas.

Brad Feld, managing director at Foundry Group, says that we should simply abolish software patents.  He believes that the system has spun completely out of control, with the vast majority of filings not passing the fundamental tests of a patent (that it be non-obvious, novel, and unique innovation).  Copyright and trade secrets have historically been the primary protection mechanisms for software intellectual property, and they are still the best solutions.  Feld notes that technology companies are now forced to divert huge resources to defend themselves from patent trolls rather than advance their innovations.

The founders of the United States considered intellectual property worthy of a special place in the Constitution—“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” They had the concept right, but they surely never conceived of patenting clicks in an online shopping cart and methods for having an online discussion, or Microsoft patenting methods for activating double click applications with a single click. It’s time to do as Brad Feld suggests: simply abolish these abominations.

Hat tip: nstranger retweeted by nzcspaul (Twitter)

Integrity of politics

Posted by on July 16th, 2010

I suspect it’s rare in politics. It shouldn’t be. But I want to thank Simon Power for upholding the integrity of the political process and keeping to his word.

No doubt we’ll disagree fiercely on other issues in the future.

The nuts and bolts was about Power sticking to his statements around supporting the Commerce Select Committee recommendation to exclude software from being patentable.

The context was a review of the Patents Act 1953.

The bigger picture issue is about the future of New Zealand’s local software industry and encouraging innovation.

Here’s what Simon Power said yesterday

Here’s what Labour said

Here’s what the local industry representatives said

And a bit more here

It’s important. For lots of reasons that are too technical to write here. But also because we need strong, sustainable industries in New Zealand. We need to nurture those industries. Software is an important NZ industry.

Even if you don’t fully understand the issue, I hope you understand that political parties can work together and respect each other’s views. In our national interest.

Pity it couldn’t happen more.

PS: Maybe Steven Joyce might read this and have a bit of a think

Poll: What are your views on copyright?

Posted by on July 5th, 2010

There’s a Bill coming before the Commerce Select Committee in the next month which will introduce a penalty regime for people who illegally download material from the internet. It’s called the Copyright Infringement File Sharing Amendment Bill.

There’s been a lot of public discussion about these issues in the last few years as more people access the internet for information and content.

Tell us what you think.

What are your views on copyright (you can answer more than one question)

  • I wish there was an easy accessible way to access movies and other content cheaply and as it is released (70%, 121 Votes)
  • I know people who regularly download movies/songs/games from the internet for their own use and don’t pay for it (68%, 118 Votes)
  • I don’t believe people should have their internet connection suspended for repeated copyright infringement (65%, 113 Votes)
  • I have downloaded movies/music/songs/games from the internet for my own use and not paid for it (64%, 112 Votes)
  • It doesn’t worry me that people download illegally as long as they aren’t making money out of it (58%, 101 Votes)
  • I feel guilty about downloading illegally (17%, 29 Votes)
  • I believe people who download any content illegally should be punished as they are depriving creative people of earning a living (14%, 24 Votes)
  • I believe people should have their internet connection suspended for repeated copyright infringement (13%, 22 Votes)
  • I don’t understand the issues (3%, 6 Votes)

Total Voters: 174

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Update: Please note this is not meant to be a scientific poll. Just indicative. And I’ve corrected the question about downloading to add in movies, which should have been there

Our Govt has its head in the sand on copyright issues

Posted by on June 5th, 2010

Sometimes it takes me a while to feel as if I understand an issue. Especially one that involves the digital world.

When I’m trying to get my head around something I try to take it back to a principle. Is it fair? Who to? Is it too complex? Will it work? Is it fostering innovation and creativity? Is it where we want to be heading?

Copyright is one of those issues.

Copyright in 2010, has become a brand, or a code. The prevalence of illegal downloading both in NZ and globally is a very real and important issue. The balancing act between protecting the rights of creators of content and allowing and encouraging access to information and material is a delicate and increasingly tricky issue which is currently exercising the minds of parliaments across the world.

Intellectual property, who owns it, who should have access, how they should have that access and what should be the penalties for infringing the rules around that access are all very live issues being hotly debated.

There’s a bunch of international treaties and agreements currently being negotiated where intellectual property features large. The Anti-Counterfeiting Trade Agreement (ACTA) and more recently the Trans Pacific Partnership (TPP) are just two. There is intensive lobbying going on, driven largely from the US.

It seems that the big elephant in the room is who’s interests are being served.

I’ve just come across this piece on The Hill which could cast some light on what is really  going on behind the scenes.

Three key US tech industry groups have urged a rethink on the US position on ACTA. The Consumer Electronics Association, TechAmerica and the Computer & Communications Industry Association plan to oppose the current draft of the Anti-Counterfeiting Trade Agreement.

Though the groups favor copyright enforcement, they worry the agreement will not include copyright exemptions that currently benefit some technology companies under American law.

The agreement may lack a “fair use” standard that allows using copyrighted content in limited circumstances. Google, for instance, relies on this exemption to store Web content in its search engine memory.

Wikipedia defines “Fair use” as a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship.

The lack of “fair use” could make American tech companies vulnerable to repercussions abroad, these groups say.

“We would expect the administration to be as concerned as we are about the existing trend of foreign countries imposing unjustified civil and criminal liability on U.S. technology companies and their executives,” the groups wrote.

ACTA has drawn widespread criticism as serving corporate interests. So just who are these corporate interests? Who do they serve and why do they have so much influence? And what principles do those interests serve?

And does our government really understand these issues?

In the Commerce Select Committee on Thursday I asked Commerce Minister Simon Power whether the government was considering a wider review of copyright issues in the light of all the controversy around Section 92A. “No” was the response. They just want their re-write of S92A passed.

I think that’s short-sighted. And not serving the interests of NZ creators and our emerging digital industry. As well as the public interest.

Hat tip @Tom_Watson

More talk of internet access being a human right

Posted by on May 31st, 2010

In France and Greece consumers have a legal right to internet access. In Spain, Finland and Estonia it has been (or is being) enshrined as a human right. Earlier this year, the BBC commissioned a survey of more than 27,000 people in 26 countries that found that 79% of adults regard online access as a fundamental right.

This time the Sydney Morning Herald reports discussion initiated by Cyberspace Law and Policy Centre executive director David Vaile, backed by the former head of GetUp! Brett Solomon, who is now executive director of in the US.

Red Alert ran a bit of a discussion on this issue last year. It is particularly relevant given the government’s intention to include a suspension of internet access clause into the new Copyright Bill about to come before the Commerce Select Committee. Labour supports the Bill (mostly) but opposes suspension.

I am interested to hear the Australian Human Rights Commission president Catherine Branson QC’s comments that:

while the Commission had not yet looked at internet access as a human right; it did recognise internet access may raise issues “relevant to the right to freedom of expression” as defined in a United Nation’s covenant on civil and political rights.

New thinking: careful experimentation #OpenLabourNZ

Posted by on May 29th, 2010

The future is all about data. Stuff that’s produced by people like you and me. And how it is distributed, used and re-used.

Data you generate. Data that cannot exist without you. Now that data is valuable, it is the new lock-in. Anyone can build another auction site, but 200 million ratings can’t be acquired overnight. Anyone can build another bookstore, but 10 million reviews can’t be acquired overnight. Google. Amazon. eBay. Flickr. Facebook. YouTube. Everything where the value is created via data you create in the first place.

Is there such a thing as digital philosophy? If so, I think I’ve found one. A digital philosopher that is.

JP Rangaswami is chief scientist at British Telecom (BT). He writes a blog under the name Confused of Calcutta. I only discovered him today.

And I’m not sure I understand everything he’s saying. But what I like is that he’s challenging our existing paradigms (man after my own heart).

This piece, sent via twitter today is called Musings about evil. And he talks about the importance of data and careful experimentation.

It took IBM 40 years to “become evil”. It took Microsoft 20. It took Google 10. It took Facebook 5. It took Twitter 2.5…….

Actually nobody “became evil”. Becoming evil is not suddenly getting easier. What we’re seeing is the confluence of a number of trends:

  • Growth in the power of the consumer, in consumerism, a post-Nader, post-Sixties phenomenon
  • Advances in information transmission and reproduction, particularly with the advent of the internet and the web
  • Emergent affordability and ubiquity of edge devices that increase the number of people connected to each other

He contends that despite the huge amount of change that is occurring, business,  and ways of doing business, have not changed. Which is creating problems.

No new business models have emerged … since the year dot, there have only been three ways of collecting value for services provided: pay-per-drink, all-you-can-eat, get-someone-else-to-pay. We have a litany of terms for the third way: advertising, sponsorship, patronage, gifting, subsidy, freemium, it doesn’t matter. There are still only three models.

The way we store, share and use data is becoming incredibly important.

These are some of the reasons why privacy and sharing and not-sharing are needing to be discussed, understood, legislated for. These are some of the reasons why identity and intellectual property and net neutrality are critical issues, issues that must be resolved in a sensible way.

It’s going to take some time before we have the conventions, practices and laws to make the digital landscape the land of the free and the home of the brave. Until then, our watchword should be careful experimentation. But experimentation nevertheless.

Read his piece. And think about this stuff.

This thinking lies at the heart of the issues that underpin copyright in the digital age. We must do some new thinking about what we produce, how important it is, who gets to use it and how they use it. Government can and should have an enabling role in this I believe.

If you’re interested,  my speech in the first reading of the Govt’s Copyright Bill (replacement to Section 92A) raised some of these issues. The big question is, what to do about it?

Hat tip: @LaurenceMillar

Credit where credit’s due #2 on patents

Posted by on April 19th, 2010

Giving the government more credit. Twice in once day. Phew.

Now don’t let your eyes glaze over just because I’m talking about patents! I’m giving the government credit so listen up.

The Patents Bill, which is about to come back before the House for its second reading was originally crafted in 1953 it was long overdue for a redraft.

One of the most interesting changes to the Bill is  a proposal to exclude computer software from being patentable, on the basis of it being, like books or movies or music, based on a concept and receiving protection under copyright.

The Commerce Select Committee recommendation came after receiving many submissions on the issue. The Committee heard many arguments about the rights and wrongs of patenting software. One of the major arguments was that patenting computer software will stifle innovation in New Zealand.

At present software can be patented so long as it produces a “commercially useful step”.

But the committee, chaired by Hon Lianne Dalziel,  said that it accepted that software invariably built on existing software and that software patents were often granted for “trivial or existing techniques.”

Imagine if a piece of music was patented and you could therefore not use the notes in that piece of music.

Despite subsequent criticism of the committee’s recommendation by organisations representing large software patenters, Commerce Minister Simon Power has said the government will back the committee’s changes on this issue.

Power says the issue is not simple or straightforward. “However, the Government believes the committee has dealt with the issue in a sensible manner and has found a reasonable solution.”

The Government would support a select committee recommendation that the Intellectual Property Office develop guidelines for inventions that involve “embedded software” — software that is built into a physical device. Software will still be protected by copyright, which prevents outright copying.

That’s sensible and even a bit visionary and I think it’s the right decision.

Hope you managed to read this far.