Communication to the Public
Certain technologies and media may make intellectual property available for use without actually making copies (a common example is "broadcasting"). In order to protect the rights of copyright owners while encouraging the use of such media and technologies, it is appropriate to allow copyright owners some control over such disseminations. Current New Zealand law seeks to achieve that through media-specific policy, and some other copyright policies seek to develop a "right to communicate."
Media-specific policy is likely to continue to create problems, as new technologies and media emerge, and as usage develops. The Ministry is correct in seeking to develop a technology-neutral right, rather than trying to enumerate and anticipate specific technologies, media, and applications. I also applaud their interest in consideration of the development of a right to communicate, in contrast to a reproduction right (par. 61-62). However, the concept of a communication right remains somewhat nebulous, and I am not sure that I agree with some of the Ministry's specific statements and approaches.
Specifically, I am not convinced that a technology-neutral right will necessarily maintain the existing balance between copyright owners and users (par. 63). While a worthy goal, that should not be presumed in policy considerations. The Ministry also seems to propose to deal with the issues of Webcasts (par 68) and cable retransmission (par 72) by narrow, targeted policy, rather than more fully exploring the potential offered by the concept of a right to communicate. As the Ministry notes in the position paper, such narrow approaches may prove problematic over time. They may also raise potential for conflicts with traditional exceptions and other aspects of intellectual property policy.
I would like to suggest consideration of a truly technologically-neutral right to communicate, that could broadly subsume copyright, or could be more narrowly tailored to the consideration of the kinds of "broadcast" rights being addressed in this section.
One could define a right to communicate as the right to set the conditions under which the copyrighted material could be disseminated. That is, the copyright owner has control over determining what is made available, to whom it is made available (to a limited number of users, or to a wider set of the public), and, in a technologically neutral way, how it is made available (for lease/loan, single copy/use sale, or broadcast - i.e. publicly and freely available). However, once the conditions of distribution are set, the distribution may then occur via whatever technology or media is feasible. (This would additionally solve many of the other copyright issues raised by the position paper, particularly the issue of transient/incidental viewing.
Let me provide a couple of illustrative examples. Consider a novel. The copyright owner makes the decision to disseminate his novel through single unit sales for private individual use, throughout New Zealand, for a content fee of $5.00 per "copy". That content could then be printed and disseminated in hardcover or paperback format, or in electronic form, as long as the license fee is paid to the copyright holder for each initial transaction, and the use is private and individual. A buyer making additional copies for resale or distribution would still be in violation, as would other unauthorized dissemination (say in movie format, or in translations in other countries) if they were not authorized by the copyright holder. Now such a right would shift the balance, as any truly technologically neutral communication right would likely remove the ability of one medium or distributor to achieve monopoly profits. The copyright owner and content creator may benefit from the added sales brought by the lower competitive prices, or may be harmed to a degree by not being able to share in the monopoly profits or by not benefiting from the additional promotional activity that a monopolist may (or may not) engage in. On the other hand, consumers would likely benefit from lower prices, more rapid distribution, and a greater range of media options.
Another example might be a television network. The network decides to offer a package of programming, including advertising, for casual viewing (let's say single use) by a particular, geographically defined, audience (say New Zealand). Under a communication right, that signal is then made available to terrestrial broadcast stations, but could arguably also be legally picked up by cable, satellite, or Internet transmitters (as long as the content is restricted to NZ) for retransmission. If a fee is charged for access, that fee should be paid by whatever transmission system is used. If the program is broadcast free to consumers, then no additional charge should be made to other retransmitters that abide by the stated conditions of communication. Such a right could also arguably extend to the right to use technology to time-shift the content for the convenience of the individual consumer. In this case, there should be no negative impact on the copyright holder, as retransmission only helps to reach the desired audience. Also, the impact on consumers will be positive, as it offers better coverage and a range of access options. However, it is possible that a transmission system may be harmed by losing monopoly control over content, and thus the ability to extract monopoly profits.
I am sure that there are other arguments that could be made where there may be additional negative impacts from such a right to communicate. Thus, it may be essential to not grant a blanket right to set conditions, but rather to enumerate specific rights (choice of compensation and audience for example). I would also be concerned that a right to communication be constrained from being extended into a right to limit use.
This approach may have strong promise and potential in the long term, but I fear that there are still many facets that need to be explored and fully considered before I could be assured that such a system would be more generally beneficial. Therefore, while I suggest that such an approach be considered and explored, I would be concerned about rushing to implement such an approach at this time.
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