CFF Speech to Commerce Select Committee on Copyright Infringing File Sharing Bill
Last Thursday CFF Director Bronwyn Holloway-Smith spoke with the Commerce Select Committee about their s92A submission
and gave the following speech. After the talk she spoke with bFM about the process
COMMERCE SELECT COMMITTEE SPEECH
My name is Bronwyn Holloway-Smith, I’m the director of the Creative Freedom Foundation – a non-profit organisation that
represents over 20,000 New Zealanders including 10,000 artists, such as musicians, film makers, visual artists, and so
on. I’m also a copyright holder – I’m a visual artist and have completed several major art commissions, and I’m a
musician and have released an album. I’m accompanied by CFF co-founder Matthew Holloway, who’s a graphic designer and
WHERE WE CAME FROM
The predecessor to this bill – the former Section 92A – didn’t have the basic essentials of judging online copyright
disputes – that is, it didn’t have independent experts in copyright law or data-forensics judging accusations. ISPs
weren’t qualified, and independent mediation was prohibitively expensive. In practice risk-averse ISPs may not judge
based on copyright, but may simply decide who is the bigger threat: their customer , or the accuser. By bypassing the
Courts and due process in favour of a free market of risk-averse ISPs the result of section 92A became clear: Guilt Upon
Accusation, not in the letter of the law but in the practice of it. Every single political party had press releases
against the law. It was labelled draconian, and indeed it was.
While campaigning against section 92A we also worked constructively by suggesting alternatives. We consulted widely
among artists and the public and talked to many parliamentarians. Even before the former section 92A was thrown out we
had detailed suggestions drafted by lawyers for a fairer replacement revolving around the idea of the Copyright
Tribunal. We’re moderates, trying to satisfy both the public and artists alike, and we’re glad the proposed bill
establishes such a Copyright Tribunal with fines as it’s primary sanction. There are however some details that need
changing to ensure that this bill benefits both artists and the public.
Internet suspension needs to go. In future years the internet will continue to become more pervasive and internet
suspension will be seen as increasingly unfair, and comparable to cutting off someone’s electricity, phone or postal
service. To avoid revisiting a law that will be outdated in the near future it makes sense to look ahead and to exclude
suspension. While this penalty has been implemented overseas, a recent study from the University of Rennes found that
instead of reducing piracy levels, the introduction of the French internet disconnection “Hadopi” law actually saw the
piracy rate in France go up by 3%.
So why did this occur and what can we learn from this?
WHY WE’RE HERE
This new bill has emerged because of concerns of lost sales due to illegal file sharing and its effects on New Zealand
artists and industries. It’s fair to say that if no one thought they were losing money we probably wouldn’t be here
today. What this means is that we’re not here to defend some abstract copying right for the mere sake of it. We’re here
discussing the public’s interest in cultural works, how to support artistic livlihoods, business models, and the
economics of copying.
It’s tempting to take a simplistic view of copyright as a property right, as if it were a physical object, and then to
derive rewards and punishments accordingly. But copyright doesn’t fit so comfortably into this category, and treating
copyright as a property right won’t solve the problem that brought us here today.
Copyrighted works are not simply items of property, but they form our culture. People will always want to access and
participate in their culture. In order to do this there must be legal options for accessing cultural works. Again, it
would be naïve to view this as an entitlement issue –whereby if the work is not offered for sale then people should
simply accept that they’re not entitled to it. People’s appetite for cultural works will always exist, and without
addressing the public’s demand for legal options we won’t solve the underlying grievances of either the public or
includes several suggestions for achieving this.
We see the internet as an opportunity for artists, not a threat, unlike industry bodies who have a history of fearing
new technologies. When casette tapes came out frightened music executives predicted the end of the music industry with
the “home taping is killing music” campaign. Similarly, the former head of the Motion Picture Association of America,
Jack Valenti, said “the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone”. To the contrary, Industry analysts later considered the home movie sale and rental market to have been the saviour of
the movie industry.
Today we’re fifteen years into the mainstream internet, and yet all of the Top 10 movies illegally shared online aren’t
legally available online in New Zealand for paying customers. If there are lost sales is this due to illegal file sharing, or unsatisfied customers? Statistics that show a decrease in profits
don’t tell the whole story.
A 2009 inquiry by The Guardian found that there was an overall increase in consumer spending on copyrighted
entertainment, from 4.4 billion pounds in 1999 to 8 billion pounds in 2008. Computer gaming emerged as a considerable
contender – with the industry more than tripling in size from 1.1 billion pounds in 1999 to 4 billion pounds by 2008. A
further study by the Dutch Government found that most reported losses in the music industry can be attributed to things
other than piracy, such as competition with other forms of entertainment. People have a finite budget for spending on
entertainment options and these include music, films and video, magazines, books, sports, live gigs, theatre, and dance.
The music industry itself has changed dramatically in the past decade, with increased competition seeing profits now
distributed amongst many more specialised service providers. It was the case that recording companies took profits from most aspects of music – operating as gatekeepers to the industry –
but this is no longer the case thanks to greater competition and new technologies. Musicians can now produce music on
home computers, and accordingly music companies now expect most artists to turn up with a finished album. Whereas once
they earnt profit from studio time now this is not so common. Recording companies are also being challenged by
specialised music distributors. And allowing people to buy digital singles rather than entire albums means that people
can pick and choose the tracks they like, a legal option that may result in reduced profits. No industry can guarantee
increased profits year after year, especially during a recession, and while illegal file sharing may be partly
responsible it can’t be held completely responsible for a drop in profits.
Copyright has moved from regulating an industrial manufacturing process that made wax cylinder music, vinyl records,
plastic compact disks, to trying to affect what people do in their homes.
Making laws to change peoples habits in private homes, on private internet connections, is always problematic. Yet
that’s the result we all want from this bill. A copyright law that affects individuals must win the hearts and minds of
New Zealanders with due process, expert judgment, proportionate sanctions, compensation to artists, and a clear and easy
to understand process. We’re pleased to see that the bill goes a long way toward this goal.
Thank you for your time, we welcome your questions.