Cost barriers to copyright access need to go

Overseas innovations could offer useful lessons as the Government reviews New Zealand's Copyright Act, writes Professor Graeme Austin from Te Herenga Waka—Victoria University of Wellington's Faculty of Law.

Copyright is getting a lot of attention nowadays. A review of our Copyright Act is under way. The Government recognises that our law needs updating.

Bolstering our "knowledge economy" is tied to economic success. And copyright products don't create so many environmental problems as other products. They're "weightless" exports. Digital files don't typically belch methane.

Copyright is the foundation for much of what goes on in the knowledge economy. It's a source of income for many creative workers. Some—writers, composers, graphic artists, photographers—get copyright income directly. Many others are part of a creative ecosystem made up of publishers, record labels, gaming producers, video production and distribution companies that  license rights created by copyright law.

But legal rights don't help much if they can't be enforced. On paper, it looks like copyright owners have a solid set of rights. But what if they cost too much to enforce? That's often the case.

Copyright is a "civil" right. Individuals have to enforce them. There are some criminal offences in the Copyright Act, but they aren't used much.

Copyright litigation can be very expensive. Legal advice, court fees, lawyers' hourly rates: all of this quickly mounts up. And then there are the risks of having to pay the other side's costs if you lose.

Consider the fate of a writer who finds that a big chunk of her work has been infringed. The 2019 Writers Earnings in New Zealand Report found that on average writers earned 31 per cent of their personal income, or about $15,200 a year, through writing. For many, if not most, writers the costs of enforcing their copyrights would be prohibitive.

The same is true of many small businesses.  Sometimes the only option is to put up with the infringement, along with the potential loss of income.

On the flip side, some people want to use copyright-protected material in their own work but don't know how to go about clearing rights. The Copyright Act has many exceptions and defences, but they can be difficult to understand. It's not always clear whether the proposed use is lawful or not. This is a particular problem for cultural institutions such as museums and galleries.

Copyright owners will often give permission (a licence), but when they don't there can be a legal stalemate. One option is to go to court. Again, costs will often be a barrier. The result is the public doesn't get the benefit of this kind of creative activity.

This is what lawyers call an "access to justice" problem. This is not just a copyright issue. Access to justice concerns are everywhere in the New Zealand legal system. With copyright, however, some innovative solutions are emerging around the world.

The US House of Representatives has just passed a bill that would create a new Copyright Claims Board, a forum where an array of copyright claims could be determined by expert copyright officers.

The board will be able to determine infringement claims – but, equally importantly, will make declarations of non-infringement. The vote in the House was 410-6, a remarkable consensus given the current state of US politics. If the bill passes the Senate, the new Claims Board would offer a low-cost alternative to expensive federal court proceedings.

In the United Kingdom, the Intellectual Property Enterprise Court also has a small claims track – another alternative to conventional high-cost litigation. There are other examples around the world.

The policy experts working on the current review of New Zealand's copyright law are consulting widely on how to improve our Copyright Act. Everyone agrees the law needs to be fit for purpose in the modern digital economy.

For all this good work to be meaningful, it's important the law can actually be used by the creative workers, small businesses and cultural institutions for whom it matters most. We should ensure the costs of using the system do not create barriers to accessing copyright justice. Some of these overseas innovations could offer useful lessons.

Read the original article on Stuff.