Submission on the FTA
Committee Secretariat
Foreign Affairs, Defence and Trade Committee
Parliament Buildings
Wellington
To whom it may concern
Re: Proposed Fair Trade Agreement (FTA) with the United Kingdom
I am writing to convey my concerns regarding the copyright changes set out in the proposed Fair Trade Agreement (FTA) with the United Kingdom: in particular, Article 17.48 of that proposed agreement. In that section the New Zealand Government and its trade negotiators have agreed to significantly change the New Zealand copyright system by extending the term of copyright and related rights protection by 40%, from 50 years to 70 years.
My interest in this: I am a digital librarian at Westland District Library, involved in the digitisation of out-of-copyright books for public lending, the release of thousands of public domain photographs onto Wikimedia Commons for the entire world to share and use, and the creation and expansion of Wikipedia articles about New Zealand artists and writers. I have been a museum curator, science journalist, and for a year the New Zealand Wikipedian at Large, funded by the Wikimedia Foundation to increase the visibility of Aotearoa on the world’s eighth-most-visited website. Much of my daily work unavoidably involves copyright terms, and despite not being a copyright lawyer I have had to advise dozens of organisations on New Zealand copyright law.
My objections to the FTA’s proposed copyright term extension are:
No clear case has been made for it
It would create significant problems for the majority of the creative sector in New Zealand, the supposed beneficiaries
It will have net negative effects for the library, heritage, and museum sectors in New Zealand and thus the public
It privileges a very small number of rights-holders and publishers at the expense of all other New Zealanders
This term extension is unnecessary, damaging, and should not go ahead.
My objections are detailed below.
1.1 The National Interest Assessment which accompanies the FTA states that “there is no evidence that increasing the term of protection for copyright and related rights would incentivise either the creation of new copyrighted works or the dissemination of older works (which are the primary policy goals of copyright protection).” In the pending review of the New Zealand Copyright Act 1994, stakeholders reached the same conclusion: extending the copyright term was not considered, for lack of any compelling evidence that it would provide a public benefit.
1.2 This extension far exceeds the “life-plus-50” standard required by the World Trade Organisation. The UK itself is aware that extensions to the copyright term makes no economic sense: in two independent reviews, experts recommended against term extension. Indeed, the 2011 Hargreaves Report stated there was clear economic evidence against a copyright term extension.
1.3 The only defence I have seen for the extension is that it “brings us into line with our trading partners.” But unlike the UK’s 1995 term extension from 50 to 70 years (to harmonise with the EU), there is no legal requirement for New Zealand’s copyright law to match another country’s. Indeed, since Brexit the UK would be free to follow expert advice and reduce its copyright term, leaving New Zealand locked into a more punishing legal regime. In practice, having a shorter copyright term has had no effect on our international trade or distribution of copyrighted works for decades now, so why is there a sudden need for it to match Britain’s? We have not aligned our laws on agricultural chemicals, CO₂ emissions, or animal welfare with the UK—although these are arguably more relevant to this FTA—so why align our copyright term?
2.1 As a digital librarian, I am responsible the the digitisation and release of New Zealand books long out of print and unavailable—significant works of our cultural heritage that no publisher can see the value in reissuing. In that role I am constantly seeing a preview of the restrictions of extended copyright, as the volunteer site we use (Wikisource) is based in the USA and uses a 70-years-after-death term. As a concrete example: in 2023 the work of Ronald Hugh Morrieson, author of Came a Hot Friday and The Scarecrow, will enter the public domain in New Zealand, because Morrieson died in 1972. In the USA and UK his work will be in copyright for another 20 years. Next year I could have digitised and released Morrieson’s collected works as free ebooks for any library in New Zealand to lend out—but not with a 70-year term. Next year New Zealand writers, composers, poets, and artists could have freely adapted Morrieson’s work, reprinted it in whole or in part, created new works based on it, or even just quoted the famous first line of The Scarecrow without having to seek permission from his estate. All these creators are the losers from a copyright term extension.
2.2 A term extension, conversely, does not benefit any living creator in New Zealand. Morrieson will not benefit from a 70 year copyright term, because he’s dead, and has been for 50 years. The ostensible purpose of copyright is to incentivise the creation of new works by protecting a creator’s exclusive rights to distribute them—for a limited time. If a creator is already dead, there is no way a term extension can motivate them further. By this logic, any term extension should be prospective, affecting only work that has yet to be created; based on the track record of international copyright legislation, though, it will not only be retrospective (affecting already-published work) but may even be regressive, taking work that was already released into the public domain—work that may have already been widely shared and reused—and placing it back in copyright. This was what was done, controversially, in the UK, whose copyright term we are supposedly going to emulate.
2.3 This change to copyright law affects all New Zealanders, not just the “creative sector”. All “creative work” is automatically protected by copyright law—telephone doodles, personal emails, Instagram photos, video recordings of family gatherings. Most of NZ’s 5 million copyright creators will never monetise their work, but all are constrained by this legislation, which determines whether they can legally share a wedding video on Facebook or include an oral history in a family memoir or post someone’s photos of their tīpuna to the marae website. Online platforms like Wikimedia Commons and YouTube are increasingly scrupulous and algorithmic about taking down anything that resembles a copyright violation, so this law will in a very real way restrict the ability of ordinary New Zealanders to copy, share, and remix the work of their friends and family—for decades after they’ve passed away. The interests of all New Zealanders need to be weighed against the supposed benefits of this term extension.
3.1 In working as a Wikipedian with the heritage and cultural sector in New Zealand, I daily come across the restrictions of our current copyright term. A heritage institution will typically be the custodian of tens of thousands of photographs and publications created within the last 70 years. Knowing the creator’s death date can tell them when copyright has expired and the works can be safely shared in a blog, exhibition, or book. Very often, though, that creator has been dead for less than 50 years, and their still-copyrighted work can be shared and reused by nobody, because the current copyright owner is unknown so can’t be asked for permission. This “orphaned” status affects perhaps millions of photos, videos, and documents in public and private collections in New Zealand, and tracking down the actual copyright holder of each orphan work is time-consuming and labour-intensive. Extending our copyright term by 40% will increase the number of orphan works by at least that much, freezing more and more of New Zealand’s heritage from any practical reuse, and making the legal clearing of copyright even harder.
3.2 The job of a library, museum, archive, or art gallery is to make New Zealand’s cultural heritage available to the citizens who own it. This copyright extension will make it harder for them to do their job, and lock our heritage away from taxpayers who quite rightly expect to be able to access it. Almost all these works have cultural, social, and historical value, but no financial value to anyone. Unfortunately, because New Zealand has no Fair Use provision in its copyright legislation—something that would normally have been negotiated as compensation for a term extension like this—these works have the same legal status as a best-selling novel or a Lorde song. These millions of works need to be taken into account when touting the benefits to the copyright holders of a far smaller number of commercial creative works.
4.1 Who are the actual beneficiaries of a term extension? Copyright was originally for just 14 years and needed to be renewed. Now it automatically extends long past the creator’s death. The number of New Zealand writers, musicians, photographers, and artists whose work is likely to still be earning royalties for their great-grandchildren into the 22nd century must be small indeed. For the vast majority of creatives, whose work will likely be out of print or no longer creating income in their lifetime, long copyright terms provide no direct benefit, but do have costs: reducing their freedom to legally quote, expand, and build on the work of others. Apart from a few superstars of New Zealand culture, the main beneficiaries of this extension are a handful of publishing companies and record labels, who can earn money for another 20 years from the back catalogue of long-deceased artists. FTA negotiators have decided this outweighs the ability of millions of other New Zealanders to share and use each other’s work: their rights are the collateral damage from this extension. A decision where a few companies gain financially at the expense of the legal rights of millions seems profoundly undemocratic. For this, and for the other reasons listed above, this term extension should be dropped from the FTA.
Addendum: I should like to add that allowing just a few days for formal public submissions on the FTA is ridiculous. This is a change that will take years to implement and have significant knock-on effects on the New Zealand creative landscape for decades to come. It is alarming that such a significant change was agreed to by negotiators who, as far as I know, have no particular expertise in this area. That this extension was agreed to without the involvement of stakeholders who have spent years negotiating a review of the Copyright Act is frankly astounding. If significant interest groups—such as LIANZA, ARANZ, and Museums Aotearoa—have not yet had an opportunity to make detailed informed submissions, the deadline should be extended for as long as necessary for them to do so. This is too important a change to rush through as a fait accompli.
Yours faithfully,
Dr Mike Dickison
www.rove.wiki
Sources
Proposed Fair Trade Agreement (FTA) with the United Kingdom submission by Siobhan Leachman
Wolfe, Michael (3 November 2021). “NZ agrees to Mickey Mouse copyright law in UK trade deal.” Newsroom
This was my submission on the FTA, with a few small changes—correcting typos and grammar, using the right link for the Michael Wolfe article, the correct term for the Statute of Anne etc. I followed it up with a 10 minute oral submission on 31 March (link here, I’m at 59 minutes in). This text is licensed for reuse, Creative Commons Attribution 4.0 International.
