Curran Clare: Copyright (Infringing File Sharing) Amendment Bill — First Reading 
Curran Clare: Copyright (Infringing File Sharing) Amendment Bill — First Reading 
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CLARE CURRAN (Labour—Dunedin South) 
: 
 I congratulate Minister Simon Power on all the hard work that has gone into the Copyright (Infringing File Sharing) Amendment Bill. It has been quite a journey and I acknowledge and recognise the genuine commitment that has taken place to get to this point. 
Copyright in 2010 has become a brand or code. The prevalence of illegal downloading both in New Zealand and globally is a very real and important issue. The balancing act between protecting the rights of the creators of content and allowing and encouraging access to information and material is a delicate and increasingly tricky issue that is currently exercising the minds of parliaments across the world. Who owns intellectual property who should have access to it how they should have that access and what should be the penalties for infringing the rules governing that access are all very live issues that are being hotly debated. 
I have three main points to make. Labour supports the referral of this bill to a select committee. It is pretty much a sensible bill that has achieved the difficult task as the Minister of Justice has said of gaining support across all of the major stakeholder groups. It does not have their full support but it has support nevertheless. Labour does not support certain aspects of the bill. We question whether the bill will achieve what it sets out to do; there are bigger issues at stake. What lies at the heart of this debate and is the core reason for the bill is that thing called the Internet. The Internet the most important social and technological development of the previous two decades is a global resource linking thousands of millions of users to each other all sharing information. It is the sharing of information that is the issue here. 
Labour supports our local artists musicians and creative industries whose successes have shaped the very face of New Zealand internationally. There is a general consensus that repeated copyright infringement of creative works requires a penalty. It is the nature of this penalty that Labour wishes to address amongst other things at the select committee. 
Estimating the cost for rights holders affected by copyright infringement is not straightforward. Technology is changing quickly and consumers react to change in ways that some people in the creative industry are struggling to understand and cope with. When considering this bill the regulatory impact analysis team considered that although there was a case for intervention uncertainty about the scale of harm being done by illegal file-sharing meant that the impact analysis did not point to a preferred option. In other words the case has not clearly been made that sales of music and movies via the Internet are decreasing due to illegal file-sharing. 
Labour believes that the Government should be an enabler not an inhibitor of creativity and connectedness. The Internet has irreversibly changed our relationship to content; there is no going back. We cannot put that genie back in the bottle. Labour supports the general aim of the bill to enable creativity by placing responsibility on consumers to respect copyright but without overly inhibiting the rights of citizens in a democratic society to access and participate in the Internet. 
So what does this bill do and what will it achieve? It amends the Copyright Act 1994 to provide new enforcement measures against the unauthorised sharing of copyrighted material via the Internet. It repeals section 92A of the Act which would have required Internet service providers to adopt a policy providing for the termination of a repeat infringer’s Internet account. Labour developed section 92A with the best of intentions and notes that it was supported by National in this Parliament in 2008. However it must be acknowledged that intense and widespread public reaction to the introduction of section 92A led Labour to conclude early last year that the issue needed to be readdressed. We moved quickly after the election to acknowledge problems with it and consulted widely with stakeholders. We realised that despite the good intention of the original Act the requirement for stakeholders to develop a workable code of practice to terminate Internet accounts on the basis of copyright infringements had some serious flaws. We pressed the Government to address the issue and supported its decision to take another look at section 92A. 
The revised version this bill goes some way to addressing the issues of the sharing of copyrighted material via the Internet. This is because it provides for an education and enforcement regime. The bill contains many sensible provisions and we support it but we are strongly opposed to the provision for suspension of an Internet service provider account which is firstly in principle unacceptable as it impinges on freedom of speech and freedom of assembly and secondly in practice is ineffectual as a deterrent and unworkable because the convicted person can just sign up with another Internet service provider. 
In France which has legislated to disconnect Internet accounts for copyright infringement preliminary findings about the effects of the law have found that it has not been successful in deterring copyright infringement. Researchers at the University of Rennes found that the overall piracy by French Internet users has actually increased. There are a number of matters in this bill left to regulation—in particular the costs payable per infringement and how those costs will be recovered. Public consultation needs to be undertaken on this. It must be a priority for this Government to clarify the relationship of the Anti-Counterfeiting Trade Agreement to New Zealand’s copyright laws. The digital copyright aspects of the agreement risk introducing enforcement practices and restrictions on content that otherwise balance existing copyright via the back door. 
Finally enacting this bill will not address the fundamental issue of copyright infringement and unauthorised file-sharing. The digital age has meant that corporations that have traditionally controlled and managed the distribution of creative content are losing control of that distribution. As I said we cannot put that genie back in the bottle; it is widespread. I challenge any members of this House to say that they do not have a family member or friend who engages in illegal peer-to-peer file-sharing. Let me give members an example. The Academy Award best picture winner  
The Hurt Locker 
 was released in United States theatres on 26 June last year and on DVD on 12 January this year. It was nominated for an Oscar and last month it won the Oscar for Best Picture. This all occurred before the movie was available legally in New Zealand. In fact it took another month before it was released into cinemas in New Zealand on 1 April. Surely an industry that claims to be adapting and satisfying consumer demand would have released the movie sooner. Just to illustrate this point a copy of the movie was released on the underground pirate scene in January 2009. In this digital day and age what does the industry expect people will do? 
The conventional wisdom of traditional rights holders such as the big distribution companies and the music and movie industries holds that withdrawing Internet access for persistent copyright infringers will protect the revenue and livelihoods of musicians and artists. Yet the prevalence of illegal file-sharing across the world is the result of the market’s inability to control and distribute content rather than the infringing behaviour of hundreds of thousands of New Zealanders and millions of people across the globe. 
However Labour believes that the ability of copyright holders to protect their rights in the digital age is a fundamental issue that needs to be addressed given the transformations that have occurred in technology and the inability of the existing laws to respond adequately. The Government should invest in enabling New Zealand content creators to use new technologies to promote and distribute their work to national and international audiences in such a way that allows them to build profitable and sustainable businesses. That means supporting new business models instead of propping up old outdated ones. One such online business using a different model is www.cdbaby.com which is the largest indie music producer in the world. I have been advised that in a traditional record or distribution deal musicians make only about $1 or $2 an album. When selling through www.cdbaby.com musicians make $6 to $12 per album and get paid weekly. The people really losing out from these advances in technology are the large monopolistic corporations whose business models based on outdated technology are being disruptive. A more Draconian law risks locking in those obsolete business models centralising control in a few corporations and restricting artists’ ability to be entrepreneurial and innovative in how they promote themselves and profit from their work. 
Although Labour supports sending this bill to select committee we do so with some qualifications. We believe that the Government should be an enabler of creativity in this country not just an inhibitor. We look forward to the debate on these issues.