Already on their heels after the Government agreed to extend copyright terms through the UK trade deal, the library and archival sector says a fast-tracked implementation thanks to the EU is unwelcome news
A controversial copyright extension is being fast-tracked due to the Government’s free trade deal with the European Union, sparking concerns New Zealand is heading into “unexplored territory” thanks to a lack of protections.
The lengthening of Aotearoa’s copyright term, from 50 years after a creator’s death to 70 years, was among the more contentious elements of the trade deal between New Zealand and the United Kingdom agreed last year.
A number of library and archival groups set out their objections at the time, warning an extension would make it harder for New Zealanders to access and use copyrighted works while also damaging library digitisation projects.
One of the mitigating factors was a 15-year transition period before the change came into effect, with organisations saying New Zealand would need to use the full time period to prepare for the impact.
However, the free trade agreement with the EU agreed to last week contains the same requirement for New Zealand to extend its copyright term, but requires the changes to be made just four years after the deal enters into force.
Michael Wolfe, a copyright adviser for Tohatoha Aotearoa Commons, told Newsroom the Government agreeing to a faster timeframe with the EU was “deeply disappointing” given concern over the initial UK deal.
“To some degree it feels like we’ve had the rug pulled from under us - we were told that the 15-year window was a big win, and the best it was going to be.”
Wolfe said a long transition period was essential to ensure there were sufficient legal exceptions and mitigations in place to prevent unnecessary damage to the creative community.
“With 15 years we could believably think, ‘Well okay, this isn’t the outcome we were hoping for but there’s a lot of work to get ready for the changes and ... we could reasonably see an overhaul of the Copyright Act’, [but] it’s hard to believe four years is going to be enough time to do a lot of the work.”
'Unexplored territory'
New Zealand lacked common protections found in other countries, such as rules governing so-called “orphan works” covered by copyright but without a contactable owner, while there was also no exception for the purposes of parody and satire.
A government review of the Copyright Act launched in 2018 appeared to have stalled, Wolfe said, with competing interests from large-scale rights holders and the creative community acting as a complication.
“There’s a lot of people you can piss off ... but there’s not a lot of people you can please, so politically it’s a difficult subject.”
During the select committee process for the UK trade deal, government officials had raised a number of measures that could mitigate the effect of a copyright extension, such as requiring rights holders to register for the 20-year extension or providing exceptions for academic work and mass digitisation projects.
However, with limited time until an extension kicked in, there was a risk that no mitigation measures whatsoever would be put in place.
“It’s unexplored territory because New Zealand would stand alone in the world in having a copyright regime that looks the same - with long terms - without any mitigations.”
Wolfe said there was no point in the Government rushing into a copyright extension, given the “profound effects” on the copyright system and unquantifiable damage to the cultural economy
“Because the process is being driven by a trade negotiation rather than internal deliberations, we’re only getting half the conversation.”
“Historical and culturally significant material will be locked up for longer, restricting access in an already under-resourced environment. It will undermine historians, researchers, and cultural producers' ability to use and re-use the collections of Ngā Taonga to make sense of our past and inform our future.” - Sarah Davy, Ngā Taonga
Sarah Davy, the group manager for accessible collections at New Zealand’s audiovisual archive Ngā Taonga Sound and Vision, told Newsroom the extension would make it harder to preserve and share Aotearoa’s heritage.
“Historical and culturally significant material will be locked up for longer, restricting access in an already under-resourced environment. It will undermine historians, researchers, and cultural producers' ability to use and re-use the collections of Ngā Taonga to make sense of our past and inform our future.”
Ngā Taonga’s ability to participate in initiatives such as the Ministry of Education’s History in Schools national curriculum would also be compromised, Davy said.
The archive wanted a copyright exception for ‘public good, non-commercial’ online access on a not-for-profit basis, or a ‘safe harbour’ provision for the GLAM sector (galleries, libraries, archives and museums), to provide suitable protections.
“At the very minimum, we require as much time as possible for the digital preservation of out-of-copyright New Zealand works before the change to the term is enacted.”
If the copyright term was extended without archival exceptions, works could be lost before being preserved, Davy said.
'No evidence' copyright extension sparks new works
The Government’s national interest analysis for the UK trade deal said the copyright extension would give rights holders greater control over their works in New Zealand as well as foreign jurisdictions.
However, it noted there would be increased costs for those in New Zealand using copyrighted works during the extended period of protection, while there would be an increased number of works for which use and access will be restricted.
“Restricting use and access to such works is to the detriment of education and the gallery, library, archive and museum (GLAM) sectors, and hinders the ability of New Zealanders to publish and make available to the public older copyright works, including those of historical and cultural importance.
“There is no evidence that increasing the term of protection for copyright and related rights would incentivise either the creation of new copyright works or the dissemination of older works (which are the primary policy goals of copyright protection).”
