The TPP and NZ creatives
Creative Freedom Foundation Director and artist Bronwyn Holloway-Smith examines the controversial Trans-Pacific Partnership, asking what it means for New Zealand's creative industries.
She says through extended copyright duration and a shrinking public domain, the TPP threatens how New Zealand artists are currently working.
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The Trans-Pacific Partnership (TPP) is an international trade agreement currently being negotiated between New Zealand and other pacific nations. The negotiations began in 2007 between NZ, Chile and Singapore, but have since grown both in scope and membership with eight countries now participating, including the United States, and others looking to join.
Through this process the New Zealand government is keen to build its political ties with the US, hoping to increase our agricultural industry’s market access. However, for those of us in the creative sector the question arises: what important NZ artistic rights is the government willing to trade off to benefit one single industry?
A major criticism of the TPP is that it is being negotiated with unprecedented secrecy, even in comparison to traditional World Intellectual Property Organisation (WIPO) processes. Some documents won’t be released for at least four years after the agreement is signed. The New Zealand government will sign the agreement without parliamentary vote or public consultation. Given the wide-reaching impact this could have on New Zealand we (the Creative Freedom Foundation) are concerned that that the very people and industries it will most closely affect won’t have the opportunity to feedback on the entire TPP text before it is agreed to.
The more optimistic nations hope to conclude TPP negotiations by the end of 2012, however with the secrecy and controversy surrounding them it is difficult to know whether this aim is realistic.
Why NZ artists should be concerned
A major concern for NZ’s creative industries revolves around the significant chapter on Intellectual Property (IP) included in the TPP text. Two alternative models are being discussed for this chapter:
- the NZ/Chile Model which is moderate and basically seeks to uphold existing international agreements such as TRIPS (see below) and focus on cooperation; and
- the US Model (referred to as “ACTA Plus” and the “standard US template”).
As seen in SOPA, PIPA, ACTA and other US-endeavours to influence NZ copyright lawmaking, the US Model pushes for an aggressive and heavy-handed copyright regime. This has huge potential to harm the way New Zealand artists work and use the internet to connect with overseas markets. It has the potential to unfairly harm public rights and public respect for copyright, artists and their work.
The US Model includes a significant extension of Copyright Duration; internet termination as a penalty; making it illegal to bypass Technical Protection Measures (TPMs) so you can’t watch a DVD you legally purchased overseas; and restricting parallel imports so NZers would both lose access to many overseas works, and be forced to pay more for books, CDs and DVDs than the rest of the world.
Copyright in New Zealand
New Zealand is a signatory to the two most significant international copyright treaties: TRIPS and the Berne Convention. Both require that the term of copyright is at least ‘Life plus 50 years’ and indeed this is the most popular duration used by the negotiating TPP nations. Far from being unusual on the international stage, New Zealand’s copyright duration is a standard one.
New Zealand copyright protection of literary, dramatic, musical or artistic works typically lasts until the end of the year the author dies plus an additional 50 years beyond that. Under the US Model however this could be extended to life plus 70 years. Sound recordings and films currently have 50 years of copyright protection in New Zealand from their year of publication, however the US Model could more than double that – up to 120 years.
Why artists need the public domain
When copyright on a creative work expires it falls ‘out of copyright’ into the public domain and becomes a kind of public resource where anyone can copy or use that book, song, or film without needing to get expensive lawyers, contracts and legalese involved.
Eroding the public domain will prohibit new artworks and innovations, whether due to unaffordable expense or lack of access to works that might otherwise disappear in the dustbins of history. No creative work exists that doesn’t connect in some way with other works -- art is a global conversation that depends on openness and sharing and this must be both acknowledged and protected.
Walt Disney’s empire was built on public works like the stories of Snow White, Cinderella, Beauty and the Beast, and Pocahontas. In New Zealand it’s enabled us to translate and perform Shakespeare’s The Merchant of Venice in te reo Maori. An extension of the copyright term will dramatically reduce the number of works we are currently legally and freely able to sample: the US Model would deprive us of what we’ve already been promised under our law.
Further, a new urgency has arisen in this age of technology with old media such as VHS and audio tapes decaying. Excessive copyright durations are preventing libraries from making backups and ‘format shifting’ works, risking a very tangible loss of our shared heritage. A copyright duration that was endless would be socially irresponsible, perhaps even selfish, and it could be as harmful as the complete removal of copyright.
While it is important to uphold copyright duration for a set period of time to give artists the opportunity to make profits from their work (selling copies, royalties, sale of books, recordings, films, prints, etc), artists should also bear in mind the benefits they’ve received from the shared community of the public domain.
Sampling and Fair Dealing
Copyright is not like physical property because all artists can take bits without needing to ask, and in fact taking is encouraged under the law in almost all countries. When someone quotes part of a book for a review -- or quotes another blog post in their article -- they’re using Fair Dealing (known as Fair Use in the US). Fair Dealing allows portions of copyrighted works to be duplicated for the purposes of criticism, review, news reporting, research, private study, or educational purposes.
Both the public domain and Fair Dealing provide an ability to comment on and reinterpret existing works, giving them a new life for present day audiences without fear of legal repercussions. This is nothing new: creativity has always built on the past and this has been evidenced by common and important artistic processes including parody, pastiche, satire, collage, appropriation, remix and other forms of sampling.
Further still, sampling is done without permission. Artists from Marcel Duchamp to Jeff Koons and Dick Frizzell made numerous important works that used appropriation. Even entire art movements from cubism to pop art and hip hop were founded on this culture of sampling. Unfortunately copyright laws, both here and internationally, do not accommodate many aspects of these popular artistic practices.
Changes to New Zealand’s copyright law, like those proposed by the US through the TPP, can harm artists and public rights under the guise of encouraging creativity. As artists we appreciate and utilise copyright, but we need to be careful that it isn’t turned into something that ultimately makes it harder for us to operate as artists, and loses public respect for us and our work. Bad copyright law could be bad for us and bad for our heritage: alienating our fans and creating public scepticism about a system that is seen as unfair, and blocking our ability to build upon other ideas and participate in global culture.
We must be aware and wary of the Trans Pacific Partnership and threat it poses to our industry. If you’re concerned about the TPP you can do something about it through the Fair Deal campaign.
- The Creative Freedom Foundation is a not-for-profit education and advocacy organisation for New Zealand artists comprising 20,000 members including New Zealand musicians, filmmakers, visual artists, designers, writers and performers. The CFF are part of a coalition of groups behind the Fair Deal campaign, focusing on copyright changes at stake in the Trans Pacific Partnership Agreement.