Copyright and creative industries

Copyright law has been playing catch-up with technology since the Statute of Anne in 1710, a legislative reaction to the ubiquity of printing presses. New Zealand’s 1962 Copyright Act came into being just before photocopiers came into common use. The 1994 Act preceded the widespread availability of the internet. The 2008 amendments to the 1994 Act were a reaction to illegal digital file sharing.

So it was a refreshing change in 2015 when the Minister of Commerce launched a study “to gain a better understanding of the creative sector and how it interacts with the copyright and designs regimes, in the face of a changing technological landscape.” The resulting report was published on the Ministry of Business, Innovation and Employment’s (MBIE) website in December 2016.

The study involved more than 500 participants in interviews, workshops and a survey. It produced a snapshot of seven creative industry subsectors: film and TV, music and sound recording, interactive gaming, software and web design, written content and print, product design and architecture, and visual and performing arts. The report summarises which parts of copyright law are important to which subsector and their relevancy.

Section 2 of the report provides general insights from the study, mostly in lists of new opportunities and new challenges that the internet and its associated technologies have provided. For any aspiring copyright lawyer it is a great primer.

When the 2008 amendments were made to the 1994 Act the then Ministry of Economic Development made an undertaking to review the effect of the amendments in five years. But in 2013 MBIE announced that the review would be delayed until the Trans-Pacific Partnership Agreement (TPP) changes had been enacted. Now that the TPP is effectively dead, after Donald Trump withdrew the United States from it, the obvious question is when will the promised review be done? The answer is: “Information gathered during the Study will help to inform … about the scope and timing of any review of the Copyright Act. If the Government decides to launch a review there will be extensive and ongoing consultation.” – MBIE.

Kim Dotcom – a never-ending saga

It is now more than five years since the Keystone Cops raid on the mansion of Kim Dotcom and the size of the digital files generated is approaching the size of the man himself. The latest High Court decision (Ortmann v USA [2017] NZHC 189) gives Dotcom some hope and raises some interesting questions about the interface between extradition, criminal and copyright law that will probably finally be resolved in the Supreme Court.

The Extradition Act 1999 defines the circumstances under which a person will be eligible for extradition. A person may be extradited to the US if: they have been charged with an offence as listed under the 1970 US/New Zealand Extradition Treaty; or deemed to have been listed in the Treaty by section 101B of the Extradition Act, including any offence punishable by a term of four or more years in prison. Copyright infringement is not listed in the treaty, so the arguments have focused on section 101B offences.

There were 13 counts in the US indictment: (1) racketeering; (2) conspiracy to commit copyright infringement; (3) money laundering; (4 to 8) specific copyright infringement allegations; and (9 to 13) wire fraud charges. Counts (1), (3) and (9 to 13) are predicated on the copyright offences under counts (2) and (4 to 8).

The District Court had found that the activities of the “Megaupload conspiracy” in allowing digital files that had been uploaded illegally to remain on servers controlled by Megaupload amounted to criminal copyright infringement under section 131 of the (New Zealand) Copyright Act 1994, which has a maximum penalty of five years in prison. The High Court decision reviewed the history of that section and overturned that finding. The section refers to “an object” and a digital file was held not to be a physical object within the meaning of the section.

However, the District Court had not stopped with the criminal copyright offence. It considered that the Megaupload activities set out in the indictment could also be offences under sections 228 and/or 249 of the Crimes Act 1961, amounting to extradition offences. The High Court agreed. But what neither the District nor the High Court noted was that an element of each of the offences in the section was dishonesty. The District Court held that the Megaupload activity did amount to an offence under the Copyright Act. But, with the overturning of that finding by the High Court it would seem that tortious copyright infringement has been equated with dishonesty. If, on appeal, counts (2) and (4 to 8) were found not to be extradition offences under the Crimes Act (because a copyright tort is not dishonesty) then the other counts would fall away as well. It’s now on to the Court of Appeal.

Doug Calhoun is a member of the NZLS Intellectual Property Law Committee. He is a former partner of AJ Park, where he worked from 1974 to 2006, describing his role as IP Mentor.