Ministry to Adams: concern copyright law protects outdated business models


Chris Keall

Amy Adams
Clare Curran

A briefing paper for new Communications and IT Minister Amy Adams was finally made public yesterday – but only after an Official Information Act request from the opposition, and still with some elements remained censored redacted (a partial version was released in February).

Read the (almost) full briefing here (it was prepared by officials from the Ministry of Economic Development, now subsumed into the Ministry of Business, Innovation and Employment).

At first glance, it is difficult to see why Ms Adams dragged her heels releasing the briefing (most briefings to incoming ministers, or "Bims" in Beehive speak) are made public as a matter of course, and are written by bureaucrats with that eventuality in mind.

And, certainly, this BIM keeps things pretty bland.

Labour ICT spokesperson Clare Curran, who initiated the OIO request, has spotted a couple of interesting nuggets.

At one point the briefing notes:

Digital content creation is becoming increasingly important from an economic perspective and concerns have been raised by users around whether copyright laws discourage the development of new digital content and innovation, and protect out-dated business models. This is a complex issue which other countries (for example, the United Kingdom) are currently considering. There is a review of the Copyright (New Technologies) Amendment Act 2008 due in 2013. The Communications and the IT Policy Team intends to work with the Intellectual Property Policy Team within the Ministry (which reports to the Minister of Commerce), to assess whether the 2008 amendments encourage the appropriate balance between protecting intellectual property holders' rights to encourage innovation while ensuring there is good access and opportunities to use information on the internet, which is also important for innovation. 

[NBR's bolding; the paragraph immediately following the above is redacted.]

Many (like me – a subscriber to iTunes US) will nod when they read the sentence about copyright laws being used to protect out-dated business models.

I want to be able to pay money to the provider of my choice – more so if the content in question isn't even commercially available here.

A local broadcaster might try to stop that, and maintain their local monopoly, but that's about protecting regional distribution contracts (looking more and more unsuited to the new online world), not copyright.

A spokesman for Ms Adams office said work had yet to begin on the review. 

Annoyingly, to some, the government has twisted the innovation argument, saying that to regulate the pay TV market would stifle new media innovation as the worlds of broadcasting and broadband worlds converge.

In fact, the opposite is true. There's no shortage of players offering video download services – including Apple, Google, Amazon, Microsoft and Sony – but their services are thin or non-existent in NZ because of restrictive content distribution contracts.

There were widespread fears of heavy-handed penalties when the Copyright (New Technologies) Amendment Act (2008) was finally passed last year (the 2008 suffix refers to its year of introduction to Parliament, under Labour).

So far, the most noteable development has been the singular lack of penalties dished out. 

Hundreds of "first-strike" warnings have been sent for allegedly illegal music downloads. 

But only a half-dozen "third-strike" notices have been issued – and a grand total of zero of those have resulted in an appearance before the Copyright Tribunal (which can levy a fine of up to $15,000).

NZ FACT, which represents the major Hollywood movie studios, has intiated no warnings whatsoever, major ISPs tell NBR ONLINE (this may change after a review of the $25 first notice fee, currently under way. NZ FACT says $25 is too high, ISPs say it is too low and doesn't cover the cost of snooping on an alleged offenders download records, then issuing a notice).

Iwi interests considered for spectrum auction
Elsewhere, there is not a lot to write home about.

"It's extraordinary that the pending decisions and actions which have now expired were all redacted. For goodness sake, were all those matters a national secret?"

And certainly, the pending actions for Ms Adams first six months as minister (the BIM was delivered in December last year) is mostly a bread-and-butter list of items already in the public domain (see pages 22 and 23 of the briefing).

A date for the transtasman review of mobile roaming charges is redacted. The minister has already made vague noises about the possible need to regulate Telecom, Vodafone and 2degrees' charges for using their service from Australia  – but been fuzzy on a timetable.

It is also notable that one of Ms Adams' action items (with no date attached) is to report back to cabinet on:

Options for addressing Māori interests in the radio spectrum: report-back to cabinet together with the Minister of Māori Affairs on proposals.

That will trouble some in the government who want the spectrum auction (of 4G mobile network-friendly 700MHz airwaves freed up by the digital TV switchover) to raise as much money for Crown coffers as possible – possibly $300 million plus. 

However, given that there is already a treaty claim filed on spectrum, 2degrees (which has a minority iwi investor, the Hautaki Trust) is agitating for auction at a special price, and the government needs to keep the Maori Party on side, it is not clear that there will be a full, competitive auction come December (or the New Year; Ms Adams has flagged a possible delay).

The Crown could lose desperately needed revenue, and Telecom and Vodafone could be up in arms. It is going to be a bunfight.

Ghost of Telecom and Vodafone's XT interference case returns
Hardcore telecommunications wonks will be interested to see a review of the Telecommunications Act is recommended.

Reference to the 2009 High Court action brought by Vodafone, which was trying to prevent the launch of XT – claiming it interfered with its network (an out-of-court settlement saw Telecom agree to instal filters on around 1000 towers – at around $1000 a filter).

The passage reads:

Review of the Radiocommunications Act: The last major review of the Act was conducted in the late 90s. The Ministry considers that it could be timely to review the legislation again. The Act's provisions with respect to interference came under scrutiny in 2009 when Telecom‟s new XT network detrimentally affected the Vodafone and 2degrees networks. The parties ultimately resolved the issue commercially, but certain provisions in the Act may need to be strengthened to provide greater regulatory certainty. New technologies also present challenges when defining spectrum rights, particularly from the perspective of balancing the rights of incumbents seeking continued exclusivity with the demands of new users. For example, new users may have the opportunity to use sophisticated radio devices that can find and use available frequencies on a dynamic basis.

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5 Comments & Questions

Commenter icon key: Subscriber Verified

Not only the extreme US copyright law but the appalling software patents law protect outdated business models.

Great to see the UK judge throwing out the Apple software patents because they are too obvious. We need a lot, lot more of that.

No-one has ever been able to produce an example of a software innovation that would not have been introduced had software patents not existed. The law is utter cr*p that benefits only lawyers and patent trolls at the expense of innovation, small start ups and consumers.

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I wonder who gave me 2 dislikes but no counter arguments. Patent lawyers?

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Pansies, most likely, Alan. Probably the same person with 3 different browsers. Your original comment is on the money, by the way.

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We had some good legal advice when starting up Marshal Software: "Don't waste money registering patents, spend it on marketing."

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Heh, looks like the same dislikers have decided to give our subsequent discussion their red X :)

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