Copeland Gordon: Copyright (New Technologies) Amendment Bill — In Committee 
Copeland Gordon: Copyright (New Technologies) Amendment Bill — In Committee 
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GORDON COPELAND (Independent) 
: 
 I want to speak exclusively to clause 49 in Part 1 which as Chris Finlayson has mentioned is all to do with the new provision in section 88 of the Copyright Act. The Commerce Committee has by a majority reinstated section 88 of the Copyright Act 1994 and as I read the Minister Judith Tizard’s amendment on Supplementary Order Paper 193 I see that the Government may now also have come to that position. I am sure the Minister will take a call to clarify that matter for me if I am wrong. 
As Mr Finlayson said the amendment in clause 49 is to reinstate the existing position—to allow the reception and retransmission of broadcast in a cable programme service. However to do that it was necessary to add new subsection (4) in order to preserve a number of technologically specific terms from the 1994 Act that will not be used elsewhere when the Act has been amended. 
My Supplementary Order Paper 154 will amend section 88 to allow the recommunication of free-to-air television and other kinds of unencrypted communication works to include broadcast by satellite in addition to cable. In other words it is simply to modernise the provisions of section 88 to take into account the technological upgrades and improvements from cable to satellite that have occurred since 1994. 
I must say that I am very surprised to hear the announcement tonight for the first time that National members will not be supporting my Supplementary Order Paper. I guess that it just reinforces again that in some areas they are not a very progressive outfit because everyone in this Chamber but they would probably know that satellite communication is the mode now used for pay-as-you-view television which was formerly exclusively on cable in 1994. I think that for National members to just say that they do not agree with my amendment without giving any rationale is typically weak in the extreme. 
My amendment will do the following things. First of all it is consistent with the Government’s aim of encouraging the uptake of digital television. It will facilitate the recommunication of free-to-air television on digital satellite and other means. It is also consistent with the Government’s aim of making publicly funded programmes shown on free-to-air television channels as widely available as possible. I wonder as a point of diversion whether those running the new TVNZ 7 which commenced broadcasting on Sunday with  
The Kingmaker Debate 
 will find it very strange that the audience for that will be very limited because people have not yet got the right box to put on their TV sets to see that programme. I cannot see how that could possibly be consistent with the Government’s aim of making television in New Zealand as widely available as possible. Obviously if it is to be made as widely available as possible then it should be able to get into as many homes as possible. That is what is happening under the present arrangements as free-to-air programmes are rebroadcast over say the Sky network or by TelstraClear and domain streaming on the Internet so that as many people as possible can see those programmes. 
My amendment is also consistent with improving the coverage of free-to-air television as digital satellite recommunications in particular are able to reach into areas where traditional terrestrial communication is very difficult. That particularly applies to a number of areas in New Zealand. I think of Northland where the majority of people living there are Maori. At the moment they get their TV be it Television New Zealand (TVNZ) or TV3 through the Sky platform. Potentially this bill which is old-fashioned and is limited to cable only will bring that to an end. The existing provision for copyright holders to establish licensing schemes for recommunication will also be retained. 
Those are the bare bones of my amendment. It does not as some have claimed require TVNZ to provide free retransmission of a programme to say Sky or TelstraClear although of course TVNZ is perfectly free to do so. TVNZ has a commercial incentive to do so as by enlarging its viewer audience at the same time as it boosts its ratings it boosts its advertising revenue which—as its representatives confirmed to the select committee—flows directly from its ratings. Therefore the larger the audience is the larger the bill and the larger the advertising revenue will be. So TVNZ already has a very significant commercial imperative from which it would want to drive this. 
TVNZ programmes continue by the way to be rebroadcast in their entirety; it is not as if TVNZ or TV3 lose the ownership of those programmes. Every part of a programme including all the advertising associated with it is rebroadcast. It is all rebroadcast in its entirety and the ownership of that programme and all the advertising and advertising revenue from it continues to belong to the originator of the programme be it TVNZ or TV3. 
So it is quite wrong to say that my Supplementary Order Paper will compel channels to provide those programmes free of cost or even compel them to provide them under certain conditions. It will not. Rather channels are able to establish a licensing scheme for the recommunication of their works. The licensing scheme will cover retransmission. Therefore any person wishing to retransmit will have to do so by the terms of that scheme and will have to pay any fee prescribed. That is just normal straightforward copyright law. All the statutory provisions needed for such licensing schemes are already provided in the Copyright Act. They allow the copyright owner or any person acting as agent for the copyright owner to establish a scheme tariff or other arrangement for the licensing of copyright works. This scheme simply has to set out the situations in which the operator of the scheme is willing to grant copyright licences and the terms on which copyright licences will be granted in those situations. To provide some oversight terms of proposed operating licence schemes can be referred by the operator or a prospective licensee to the Copyright Tribunal for review. The tribunal would consider whether the scheme and its conditions were reasonable. A person who has been refused a licence under a licensing scheme may also refer the matter to the Copyright Tribunal. 
I trust that that further information will assist to clarify the situation. Clearly if TVNZ or any other free-to-air broadcaster should establish such a licensing scheme then copyright is fully protected. I suspect that TVNZ not to mention perhaps Mr Finlayson and the National Party has not actually grasped that central reality although I am very surprised at Mr Finlayson’s comments because until very recently I was assured that National did grasp that reality and would therefore be supporting my Supplementary Order Paper. But not for the first time in my experience those members have suddenly decided today to do something rather different. 
Just to be clear about the matter if we refer to my Supplementary Order Paper 154 we see that subsection (3) of the proposed section 88 specifically states: “This section does not apply if or to the extent that licences authorising the reception and immediate recommunication of a communication work and any work included in the communication work are available to the person under a licensing scheme and the person carrying out the recommunication knew that fact.” 
I say in simple terms that I know of no reason why my Supplementary Order Paper would not be acceptable to the entire television industry in New Zealand. It is an attenuation of a normal process and I have yet to fathom or obtain any reason for or explanation of why it should not happen. Sadly sometimes this Committee in its haste or maybe even for political reasons tends to miss the point. I think I am likely to find when the vote is taken on my Supplementary Order Paper that that situation sadly applies tonight in relation to this particular matter. Thank you.