Part Two: Analytical Framework
A. Copyright: Enhancing the Public Interest
10. The issues involved in the review are multi-faceted and have potentially far-reaching implications. It is, therefore, crucial that the review takes place within a robust analytical framework. The guiding principle of copyright policy is the enhancement of the public interest. While the term "balance" is frequently used when discussing copyright policy, this balance is about the wider public interest, rather than simply achieving a middle ground between the competing aims of creators, owners and users of copyright works.
11. Under this principle of public interest, there are four broad and over-lapping objectives: economic, legal, social and cultural. The government's growth and innovation strategy stresses the need to enhance New Zealand's innovation system. An important element of this is improving New Zealand's intellectual property framework. Other relevant goals relate to creative industry development and innovation policy goals, as well as wider education and information technology policy objectives.
12. Therefore, when considering the question of whether the Copyright Act 1994 should be amended the following broad context will need to be taken into account:
- The government's goals of growing an innovative New Zealand for the benefit of all, and the need to support research and development, while minimising regulatory barriers to innovation;
- New Zealand's international obligations under the various treaties to which New Zealand is a signatory.
B. Economic Objectives
13. Effectively copyright is a "limited" monopoly right. It seeks to provide creators and investors, both local and international, with the opportunity to derive an adequate commercial return. It also allows them to maintain the value and integrity of their work by controlling or restricting access.
14. In other spheres, monopolies may not be in the public interest because of the reduced choice and higher prices that may result. These factors impose economic costs on society. Copyright, however, is considered to be justified, because, in return for granting a temporary monopoly, society benefits from something that it did not have before: the creation of a work that is new and innovative.
15. This does not mean that the costs associated with monopolistic behaviour are not present. Providing copyright protection has costs, as property rights over works can create an artificial scarcity. If the cost of accessing copyright material is too high, this may act as a disincentive for future cumulative creative activity and other socially beneficial uses of copyright works. The extent to which the costs of copyright protection are justified depends on the incentives for future creativity. New Zealand's likely aggregate position as a net importer of copyright works adds an extra element to this calculation.
16. The Act uses various methods to ensure copyright law does not unreasonably restrict use of copyright works: firstly by limiting the scope of the rights themselves; and secondly, by providing for exceptions to copyright infringement for specific purposes. Such exceptions include the use of copyright material by educational institutions, libraries and archives. The question of access to copyright works by these institutions is a crucial part of the public interest balance that copyright policy seeks to achieve, and the implications of digital technology in this area will have to be closely considered against the need to provide incentives for the production of copyright works.
C. Legal Objectives
17. New Zealand is a signatory to a number of international treaties. These include:
18. Without effective copyright protection, at least commensurate with international standards, foreign exporters and investors may not have the confidence to export copyright products to New Zealand. This has implications both economically, by reducing the amount of material that creators and consumers may have access to, and more generally by limiting access to information and copyright goods.
19. These treaties require parties to provide the same level of copyright protection to residents of other parties as they provide for their own nationals. This means that New Zealand cannot discriminate against non-residents in applying copyright protection. Conversely, other countries cannot discriminate against New Zealand copyright holders.
20. New Zealand has signed a Memorandum of Understanding with Australia on Business Law Co-ordination. This recognises that co-ordination of business law may help to minimise impediments to trans-Tasman business activity. This does not mean that New Zealand and Australia are required to adopt identical laws. Nevertheless, when considering changes to the Copyright Act, the possibility of harmonising New Zealand's law with that of Australia should be borne in mind.
21. Our policy responses are, therefore, both limited and guided by our international obligations. A major question for the review is whether New Zealand should accede to further international conventions and take on new obligations, namely the WIPO Copyright Treaty ("WCT") and the WIPO Performances and Phonograms Treaty ("WPPT"), known collectively as the "WIPO Internet Treaties".
22. In copyright policy, as in any area of regulation, the objective of clear and transparent legislative reform is important, so that the law is more easily accessible and provides greater certainty for stakeholders. A factor to consider is technological neutrality. There are, however, risks in pursuing neutrality for its own sake where there are differences that justify separate or distinct approaches.
D. Social Objectives
23. Copyright policy has an important role to play in ensuring that New Zealanders have access to the widest possible range of material subject to copyright protection and information contained in copyright works. Similarly, copyright policy has a role to play in facilitating technology transfer from other countries. As previously noted in the discussion on legal objectives, services may not be provided to the New Zealand market if sufficient protection is not provided to safeguard the providers interests.
24. Copyright policy, therefore, has a role in the achievement of New Zealand's wider education and innovation policy goals by ensuring that New Zealanders have access to foreign copyright works, the information contained in those works and associated technology.
E. Cultural Objectives
25. Copyright is an important part of creative industry development in New Zealand. Although there are economic benefits to promoting the creative industries, there are also less tangible cultural benefits for all New Zealanders.
26. Copyright policy, and intellectual property policy generally, also have important implications for Māori and for the government's obligations under the Treaty of Waitangi. In particular, there are concerns amongst indigenous populations internationally about the ability of intellectual property regimes to protect traditional knowledge and to provide for collective ownership of rights. These concerns are, however, outside the scope of the current review.
2 New Zealand is a signatory to the 1928 Rome revision of the Berne Convention. The TRIPS agreement, however, incorporates the later Paris revision of the Berne Convention, and so New Zealand is required to comply with the substantive provisions through TRIPS.
3New Zealand is not a signatory to the Rome Convention but is required to comply with the substantive provisions through TRIPS.
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