- Debate resumed from 23 October 2007.
RUSSELL FAIRBROTHER (Labour)
: It is my pleasure to speak on the second reading of the Copyright (New Technologies and Performers’ Rights) Amendment Bill. This is important legislation, if only because it updates an Act that is now 14 years old. In our digital age an Act that is 14 years old is aged indeed, because when the Copyright Act was originally passed in 1994 the Internet was just a babe in arms; it was a concept that was not used much in this country. The term “Internet service provider” was strange to most people, but those providers are now part of the daily bread and butter of most people in this country from about the time they turn 7.
The Copyright Act achieves a very fine balance between the need to protect intellectual property and the need to enable access to it by people who would benefit from developments of the human mind. The bill maintains that balance in the Copyright Act 1994 between protection and access, which has stood the test of time. But what the bill does is meet the challenge of the emerging technologies. We see this a little bit in the debate over section 88, which the original bill repealed. The Commerce Committee, considering it at a tangential approach, reinstated it. I think it will now be repealed by way of a Supplementary Order Paper. It deals with cable programme services being retransmitted without the permission of the broadcaster. The concern of the Commerce
Committee seemed to be that free-to-air television in remote areas would be affected by that. The Supplementary Order Paper will address that.
This bill has a common-sense approach to the difficulties of Internet service providers. They cannot monitor all the time all the content that goes through their gateways, but once they are on notice that there is infringing material, it is incumbent upon them to take steps to remove or block that infringing material. This is what is known as “notice and takedown”. Once Internet service providers are reasonably on notice that there is an infringement of copyright, then they must react in a way to protect the copyright. If they are not aware, then they are immune from prosecution and other steps that could lead them into a situation of being answerable.
On a wider approach, intellectual property in New Zealand is an area of law that is still emerging. There are specialists on it, and there are one or two textbooks on intellectual property. It is a fecund area of the law that is ripe for development, and copyright is one of the earlier types of intellectual property in the development of our law. Copyright is often misunderstood; people think they need to take out some form of patent or whatever, but copyright occurs when one asserts ownership of a particular piece of intellectual property. The assertion of ownership is often sufficient to satisfy the copyright requirements. Assertion of ownership can be in many forms, such as a declaration that the property is an original work, or the adoption of the copyright symbol ©, which we are all familiar with, or another form of assertion of property. Copyright is one of the more fundamental property rights we have in this age of technological and intellectual development.
This bill updates the 1994 Act. It does not seek to change the basic concepts therein, but it certainly brings the matter quite fairly and squarely, as the select committee acknowledged, into the 21st century. One can only speculate that in 15 years’ time, for reasons that are not apparent to us today, there will need to be further changes. We always think that things that are modern and exciting today will be modern and exciting for all time.
Hon Clayton Cosgrove: Like Bob is!
RUSSELL FAIRBROTHER: Back in 1994, before people knew of Clayton Cosgrove, he was modern and exciting, and we are all now excited by his presence and the way he will lead this Labour Party to successive years of good governance by following the pattern of our present leadership, Helen Clark and Dr Michael Cullen. On this side of the House we have considerable confidence in the intellectual ability of Clayton Cosgrove. In fact, we assert copyright over the Minister. We think he is a product of this great Labour Party. He is taking on the terrible people in the Real Estate Institute with great courage. He went through the Weathertight Homes Resolution Service like a dose of salts and gave everybody the trots, and the Hon Shane Jones is now picking up that role like absorbent toilet paper. We have now turned Clayton Cosgrove on to the real estate agents. By our adopting our good friend Minister Clayton Cosgrove, we are asserting our copyright over his intellectual property. I know that some on the other side would say there is not a lot of intellectual property there, but I simply say that Clayton is one of the biggest secrets out there. Until one is faced with the intensity of his concentration, one cannot appreciate the depth of the intellectual property contained in that up-and-coming Minister. I look forward to serving 20 more years in this House under the future leadership of Clayton Cosgrove.
I go back to the Copyright (New Technologies and Performers’ Rights) Amendment Bill.
Hon Darren Hughes: What about Ruth Dyson and Darren Hughes?
RUSSELL FAIRBROTHER: I am happy to talk about Darren Hughes. It is a change for him not to talk about himself. I think I should have a chance to talk about
him, as a bit of light relief. I was approaching retirement when my friend Darren was going to school.
We see in this copyright bill strange terms such as “format shifting”, and I ask members of the House what they understand “format shifting” to mean.
Hon Darren Hughes: It’s the National Party policy process!
RUSSELL FAIRBROTHER: That could well be correct, except that would be “formats shifting”. “Format shifting” is the sort of thing this bill works on. It is a term used in the music industry. It is tackled by this amendment bill, which aligns the law with the public’s needs so that we can protect our domestic artists and we can encourage the cultural industries and pursuits in this country.
That makes me realise that in the time of this Labour Government the amount of work by local artists being played on our radios has multiplied considerably. I remember—say, in 1999—that we would be lucky if 10 percent of air time was taken up by local artists. These days if we pick up almost any radio station, we will hear, sooner than later, a local track by a local artist, and we will hear that artist being praised as though he or she earns a place in the pantheon of artists across the world—and this country is much the better for it.
The Minister responsible for this bill, the Hon Judith Tizard, also happens to be the Minister responsible for bringing our local artists to the fore on the airwaves, and her promotion of local music and local content is one of the benchmarks of this Government, which encourages intellectual development and the creative industries. People often laugh at the creative industries; people often underestimate how important they are. Creative artists in this country are not bound by the pursuit of the dollar; in fact, their lifestyle often denies the importance of money. A strange synergy occurs in that they produce works of art of considerable value, with the fruits of that value often denied to the artists themselves. When we reflect that so many of our artists die in a state of poverty, but the ultimate owners of their works live in a state of considerable richness, it underscores the importance of these concepts of intellectual property, which, reduced down to their basic essentials, find their way into the bill that is before us today.
So, without wanting to delay this matter at all, or to cover matters that are not relevant to the bill, I simply want to say that this bill is part of the wider reform process to ensure that intellectual property legislation is up to date and relevant, and takes account of international developments. As members of the House will realise, we cannot have intellectual property and copyright in isolation. Copyright is essentially a tool of the global market, and we must be ready to protect our own artists from the influences of the global market. We must be able to protect that which we produce, and to market it across the world, and that requires the vehicle of an amended Copyright Act 1994.
Although this Act has spent only 14 years on the statute book, it is increasingly featured in our litigation, and case law is building to reflect that. This amendment is timely and brings in the new concepts. I imagine that in 10 years’ time there will be a need to further amend it, not because of deficiencies in the select committee work or deficiencies in the bill now before us, but because the changing landscape of the intellectual and creative sectors will demand that this House be responsive with amending legislation. I am delighted to speak on the second reading of this legislation tonight and I commend it to the House.
Hon CLAYTON COSGROVE (Associate Minister of Justice)
: I rise to support my colleague in respect of the Copyright (New Technologies and Performers’ Rights) Amendment Bill in its second reading. I thank Mr Fairbrother for his very complimentary comments; I am a humble servant compared to that member.
It is a fundamental human right for citizens to protect their own intellectual property. I do not believe that anybody in this House—there may be one or two—would argue with that. In a former life I was occupied as an employee in the telecommunications industry, and I know that in that industry the nature of copyright protection of intellectual property has changed very much because, as we know, technology evolves. Unlike, for instance, the written word—the book—technology evolves day to day. One minute it is CDs, then it is DVDs, then it is hard disks. Computer technology and telecommunications technology is changing by the day—as is latent artistic talent—so it is timely that this bill, which amends the Copyright Act 1994, has been brought forward and promotes, as has been noted, a legal framework that will provide protection in the use of copyright material.
One could cite various breaches of fundamental copyright and intellectual property. For instance—
Russell Fairbrother: Sadly so—sadly that’s the case.
Hon CLAYTON COSGROVE: My colleague, a learned lawyer, says that is sadly the case. For instance, as an example of what this bill will remedy, one could make an argument that the National Opposition has breached copyright. One could argue—
Bob Clarkson: What? Why, you can talk!
Hon CLAYTON COSGROVE: I say to “Sir Les Patterson” over there, who is interjecting, that one could argue that National has breached copyright because it has adopted—and I am sure Mr Brownlee would agree with this—a large number of the policies of this Government. I am no lawyer; I know Mr Chauvel—
Gerry Brownlee: That would be right!
Hon CLAYTON COSGROVE: Neither am I a woodwork teacher, like Mr Brownlee. Unlike Mr Fairbrother I am not a legally trained person, but one could, I think, make a cogent argument—
Gerry Brownlee: What are you? What are you then?
Hon CLAYTON COSGROVE: Mr Brownlee is so light that he could tap dance on a chocolate éclair—after he had eaten it, of course.
But one could make an argument that the National Party, in adopting KiwiSaver which it was against, in a legal sense—and I do not know; I ask learned colleagues—could have breached the intellectual property rights of the Labour Party and the Labour Government. One could argue that members of the National Opposition, in saying they were against climate change and then saying they were for climate change and effectively adopting the Government’s policies, could indeed have breached intellectual property rights. We know that the policy of interest-free student loans was a policy they vehemently opposed day after day, and then they adopted the Government’s policy. One could make an argument, perhaps in a different place, that those members have breached intellectual property rights and the copyright that is the Government’s, because those policies were and are very popular Government policies.
It is likewise with the nuclear-free policy. That is an intellectual idea—therefore it is intellectual property—adopted, promoted, and cemented down in our legislative framework, that was bitterly opposed for years and years by that crew over there, then suddenly in a road to Damascus experience, it was adopted by the National Party. One could argue that that is a breach of copyright.
Then we come to a more precise example that I think is probably even more germane in a technological sense.
Chris Auchinvole: That’s a big word!
Hon CLAYTON COSGROVE: For Corporal Jones over there, or Captain Mainwaring, “and” would be a big word. “But”, “ah”, or “um” would be big words for that member. But I say to him that a very high profile breach of copyright occurred in
this House. It was in respect of new technology that is used every day, so it is a very germane example to illustrate what will be an effective policing and legislative regime under this legislation. The breach was when the National Party, in the form of Mr Key, released its infamous DVD, which, I think hit the “worstsellers” list. I think the DVD was called
Ambitious, or something like that. I am told that the DVD used a song by a group called Coldplay. Mr Hughes, who is a lot younger than me and a lot more hip, savvy, and trendy, could, I am sure, elucidate for hours on this band; I had not really heard of it.
Hon Member: What?
Hon CLAYTON COSGROVE: It was a band called Coldplay, and that band called Coldplay apparently had a song called “Clock”—and I pronounce that very precisely for very obvious reasons. Apparently what happened was that the National Party released the DVD—
Gerry Brownlee: I raise a point of order, Mr Speaker. I have been listening to this member for quite some time now, and although most of what he said passes without much comprehension because it is incomprehensible, I did pick up the word “clock” in his comment. I ask you to look at the clock, because he has been talking so long I am convinced the clock in this House has broken.
Hon CLAYTON COSGROVE: That is a powerful point of order from that member.
Mr DEPUTY SPEAKER: There is no comment on that; it was a correctly sought point of order because it was on procedure.
Hon CLAYTON COSGROVE: On your behalf, Mr Deputy Speaker, and the House’s behalf, I would like to thank that genius—the intellectual giant Gerry Brownlee—for his massive, massive contribution. It is the greatest irony in the House that Gerry Brownlee is the National spokesperson on energy; that is the most ironic thing I have ever heard.
I will get back to the example of a breach of intellectual property. The National Party released a DVD that, as was seen, had a piece of music from a band called Coldplay and the piece of music is apparently called “Clock”. But learned members may ask why that would be a breach of copyright. It was apparently because—
Hon Annette King: “Clocks”.
Hon CLAYTON COSGROVE: The title is “Clocks”, I am told by the trendy member from Rongotai. Apparently it is a breach of copyright, because if one publishes something that belongs to others—an original idea; in this case a piece of music—and does not seek their permission to use it, one effectively flogs it or steals it, and that is a breach of copyright because one does not have their permission to use it.
Often with copyright, of course, come royalties. If one seeks a musician’s permission to play a piece of music in the way the National Party did with that promotional item, normally one would pay a royalty—but not these guys. They are too mean of spirit and mean of character—and mean, full stop. So the National Party did indeed breach a copyright of intellectual property. It did not seek permission from that band called Coldplay. It used the song, “Clocks”, in the strange DVD that nobody really takes any notice of anyway.
Hon Annette King: It had to be withdrawn.
Hon CLAYTON COSGROVE: It had to be withdrawn by the man who is ambitious for New Zealand but cannot understand what the law means—and that was a breach of intellectual property law that this legislation seeks to remedy.
The legislation is flexible, however. We do not want iron-clad laws, because Mr Brownlee—who, I am told, as a band member of the “Minetti Brothers” might have put out a CD—may want to copy that DVD on to his iPod; I am sure he has. This legislation
will allow him, within the privacy of his own dwelling as it were, to copy his Steve Martin records, or whatever. It will allow people, for their own use, to copy from a tape or a DVD to their own iPods. It will allow people to do that without committing a criminal offence. It will not allow anyone to copy a disc and then provide it to others for their use, but it will allow a person to do that for his or her own use. Of course, Mr Brownlee objects. Mr Brownlee is the No. 3 - ranked member in a party that was so knowledgable about intellectual property rights and copyright law that it breached that law very simply by putting, without permission, without royalties being paid, a tune by Coldplay on its DVD. So listeners and members can—
Hon Ruth Dyson: Coldplay is a good name for them.
Hon CLAYTON COSGROVE: Yes, it is a good name for those members, my colleague says.
Gerry Brownlee: Look, if I wasn’t here you wouldn’t have a speech.
Hon CLAYTON COSGROVE: No, but the pantry would be a lot fuller in Bellamy’s. So the point is that members can take the word of Mr Brownlee, the resident expert on copyright—whose party breached it—or they can look at this learned piece of legislation that is designed to prevent those breaches, protect our artists, our musicians, and others, so that they get their fair share—[Interruption]. I thank the orange roughy in the corner, squawking away. Maybe we could copyright that sound. I do not know whether anybody would want to copyright that sound, or whether there is any intellectual property right to protect us from that member. I doubt it.
But this law—and it is a sound law—seeks to bring us, as Mr Fairbrother said, into the 21st century, in order to protect those artists, and to protect the rights of people who generate ideas so they can gain from them in a legal sense. So I say in closing that I support this law. I look forward to the National Party making an intellectual contribution. I look forward to Mr Clarkson, of course, and to others making an intellectual contribution. Then we shall see whether they will elucidate and tell us how they managed to breach the law of copyright.
Hon DARREN HUGHES (Deputy Leader of the House)
: I am motivated following the speech made by my colleague and friend the Hon Clayton Cosgrove, that very trendy member, as he volunteers himself to be with regard to talking about the Coldplay CD. I think it is really important that Parliament does not let the Copyright (New Technologies and Performers’ Rights) Amendment Bill just slip by in its second reading without asking the National Party members to engage in the debate on this bill. So many of the things this bill covers directly relate to National’s daily experience here in Parliament. I know that the bill does contain ways in which we can ensure that intellectual property plays a major role in moving towards a knowledge-based economy. I know those are very big themes for the parliamentary Opposition to try to explore.
There are two particular provisions in the bill as reported back from the Commerce Committee that I thought were worth the attention of the House tonight. The first is the provision that allows for copying for educational purposes. There is no better example of copying for educational purposes in our Parliament than when the National members come in with their Xerox machine and start photocopying Labour-led Government policy to try to help them out. I want to know from the select committee’s deliberations whether they see these breaches of the Copyright Act as being something that the Parliament should be concerned about. Mr Cosgrove started off—and this got me thinking about it—by noting all the times when the Government has brought policy to Parliament and the National Party has copied it for educational purposes. So many of the things those members have tried to do, they used to be against and now are for.
Gerry Brownlee: Name 10!
Hon DARREN HUGHES: The member says “Name 10”. Why is he cutting me so short? Why is he being so unreasonable and trying to bully me, and shut me down to mentioning only 10 policies the National Party has copied for educational purposes, which the select committee has reported on in terms of this bill?
Let us start with the educational one. I see the deputy spokesperson on education Mr Peachey over there. Let us start with the interest-free student loans policy. That apparently was the biggest bribe in New Zealand’s political history. Do members remember hearing that? The National Party said at the last election that Labour was low down and that we were stealing the election because we offered that policy to the country. John Key then said “Hang on, we lost the election on that.” But that does not quite explain why Mr Key came back into Parliament after the election, got up in this House, spoke against the bill that gave us interest-free student loans, and then carried his motley crew of 48 out into the Noes lobby and voted against the interest-free student loans policy, which they have now copied for educational purposes in terms of this bill. So I want to know from National members whether interest-free student loans are a bribe.
Mr Guy is very quiet. I remember him on the campaign hustings in my area saying it was a terrible bribe, and tonight in Parliament, having been elected here, he says absolutely nothing about it.
Hon Clayton Cosgrove: The bellows have closed.
Hon DARREN HUGHES: Even Mr Brownlee is very quiet, but I do not think Mr Brownlee has ever had to worry too much about a student loan. I do not think that is one of the things on this balance sheet he has been all that concerned about, only, of course, because his age meant that was not available, as opposed to any eligibility issues in that respect. So he asked me for 10, and I have given him one. I am 10 percent there.
Then I thought about copying for educational purposes. Throughout history, of course, we learn from the errors of our ways, and what better way than when peoples go to war and are in conflict? The National Party has copied the Labour-led Government’s foreign policy on the Iraq war—I think. I am not quite sure whether it has copied that. It might be one of those copyright changes—
Charles Chauvel: It depends on who they are talking to.
Hon DARREN HUGHES: It depends on who they are talking to. I thought it might have been a bit like when they copy a movie and we are watching a DVD and all of a sudden someone’s head pops up, because it has been filmed in a movie theatre—it is almost a copy.
Hon Annette King: It’s a blooper.
Hon DARREN HUGHES: Well, there are 48 bloopers sitting opposite. But sometimes we think something has been copied, and we think it is the genuine article, then someone’s popcorn runs in front of the screen and we know it is only a partial copy. So I am not sure whether the National Party’s shifting seats around the Iraq war will come under the ambit of copying for educational purposes under this bill.
One thing that will, though, is climate change. That used to be the biggest hoax that had been perpetrated on the country. I remember all the inane, immature little jokes that National members made as they giggled across the hustings about a “fart tax”. They giggled and they laughed. They thought it was wonderful to mention such a naughty word, and that was their entire approach to climate change. But now it has been copied for educational purposes, under this amendment bill, and they are in favour of it.
Well, one thing we know about the National Party members is that they love holidays. These people were born not only to rule—they think—but also to holiday. I see Mr Auchinvole laughing, because he often works into the early hours of the
afternoon. He is one of the more dedicated ones. He thinks he should be the union rep for the National Party. He is so busy, working there.
Gerry Brownlee: You know that because you see him on your way home.
Hon DARREN HUGHES: Mr Brownlee speaks up because he is programmed to interject every 15 minutes, and I welcome his contribution to the debate. National members were against 4 weeks’ annual leave for working people, even though they take 8 or 9 weeks themselves. They thought it would bankrupt the economy. It was a cost to employers, they said. They said the Labour-led Government does not understand business. They said we were piling on compliance costs and doing all these terrible things. They said it would be the end of capitalism if we had 4 weeks’ leave like Australia, the United Kingdom, and so many of the European Union nations. Now, despite their outright opposition—guess what? The National Party policy is for 4 weeks’ annual leave. It turns out that it does not destroy the economy after all while they are busy on holiday.
There is another thing they copy. During the 4 hours we spent on the financial review debate, I heard them criticising Government departments that have employees earning more than $100,000. There is one organisation in New Zealand where everybody earns over $100,000. They are useless, lazy, and incompetent, but we pay them because it is the right thing to do. I refer to Her Majesty’s loyal Opposition in that regard, all sucking up the 100 grand and then complaining bitterly about some departments having some people who earn over $100.000. Who honestly thinks that Sandra Goudie is worth over $100,000 of intellectual firepower a year? Who thinks that? Not one member of the National Party put up his or her hand, although Gerry Brownlee is worth $100,000 a year.
Gerry Brownlee: I raise a point of order, Mr Speaker. I am sorry to interrupt the member but he asked a question. He speaks at a very fast clip, and as he has explained to the House numerous times, such speed is not something I keep up with, so perhaps he could just ask that question again.
Mr DEPUTY SPEAKER: Thank you.
Hon DARREN HUGHES: He wants me to go more slowly than this. I wish I was on a strategy committee chaired by Gerry Brownlee. I think it is a great thing that Gerry Brownlee is in charge of National Party strategy—we are very pleased about it.
Gerry Brownlee: Working well at the moment!
Hon DARREN HUGHES: Oh, no, the member should just wait. Who thinks the National Party has had a good parliamentary session in the last 3 weeks? Who has been really proud of their leader in the last 3 weeks, as they have ducked and weaved? Who has been? Not one hand goes up. Look at them. Chris Auchinvole puts up his hand, but one would hardly take his political advice seriously. He is greasing up because he is hoping to be made an associate spokesperson on something. So that is the only reason he would think that.
What we have seen is that when National Party members have been so very busy trying to decide what their policy position on things has been during the past 3 weeks, it has been clear that they need the Copyright Act repealed, because they need to copy absolutely everything. The National Party should not vote for this bill tonight, because it should not have law on the books that stops it thieving and nicking other people’s policies in our country.
The National Party makes a big play about its cosy relationship with the Māori Party. I wonder how many of these National MPs have told the Māori Party that all of them, except for one, voted against the Māori Television Service Act when it came through Parliament. Every single one of them said it was political correctness gone mad, because that was the time when all the National Party members used to say “One
standard of citizenship and one law for all.” Is it not amazing that all 48 of them now say “Oh, that wasn’t us, that was just one man—Don Brash. He’s gone now. Tehei mauri ora! Nekeneke mai. We’re are all on board.” This is ridiculous. They all stood there and mocked the Māori Television Service Act when it came through, and now they have copied it for the purposes of education.
There is one other area, before Mr Brownlee seeks an extension of time for me, that I want to cover. It is the part of the bill that refers to orphaned works. I think it is really important. It is when intellectual ownership is no longer asserted by an organisation and it becomes an orphaned work. I want to know from the next National Party speaker whether that covers their policy on privatisation. That could easily be described as an orphaned work, because it used to be National Party creed. But now, apparently, it has been totally abandoned by the National Party as an orphaned policy. I want to know from the National Party speaker whether its policy on the primary industries is now an orphaned policy, because it has totally abandoned that as being absolutely out of tune.
Mr Cosgrove mentioned Chris Martin from Coldplay. National members were playing cold last week when they got the Fast Forward fund completely wrong. However, when that fund delivers right across the agricultural sector for the next 10-15 years one should watch the National Party try to claim credit for all the great things that come out of it, but it opposed that last week. National members must be cringing because they know they got every single part of it wrong. Everyone else who should be in favour of it is; even the Hon John Luxton is in favour of it.
There are a whole pile of National Party policies that I believe it has copied. The National Party has weaved and ducked. It has tried to abandon some policies and to say that they are now orphaned works. I think it will be a bit like that stage show
Annie, where she grows up thinking she is an orphan, but her parents turn up in the end. The parents of the National Party are Roger Douglas and the old far-right economic theory, where they privatise, sell, cut taxes, cut spending, cut the pension, do not look after the people, and look after all their mates. National Party members should vote against the bill because they are just a bunch of photocopiers.
- Amendments recommended by the Commerce Committee by majority agreed to.
A party vote was called for on the question,
That the Copyright (New Technologies and Performers’ Rights) Amendment Bill be now read a second time.
||New Zealand Labour 49; New Zealand National 48; New Zealand First 7; United Future 2; Progressive 1; Independents: Copeland, Field.
||Green Party 6; Māori Party 4.
|Bill read a second time.name changed to Copyright (New Technologies) Amendment Bill