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By Steven | April 7, 2012

It seems that pretty much all the discussion about copyright these days is about the new online infringement laws. But I want to talk about another copyright issue that I think poses, on paper anyway, a bigger threat to free speech: the surprisingly narrow reach of our fair dealing defences.

I say “on paper” because copyright gets flouted all the time and usually without any consequence whatsoever. If someone gets into the news, newspapers don’t hesitate to filch a photo from their Facebook page. If anyone complains, they offer a couple of hundred dollars. Who’s going to sue? Bloggers rip off vast chunks of text from anywhere they like or put together a mash-up lifting clips and music from other sites or write their own captions for that Hitler scene in Downfall. TV producers often grab footage with barely a thought for the copyright implications.

My impression is that the only people who really take copyright seriously are film-makers and book publishers, because if they fail to get a copyright clearance, there’s so much invested that the copyright owner has them by the short and curlies. That’s because the laws of copyright are extraordinarily far-reaching. Authors and creators hold nearly all the legal cards. Almost any work – musical, artistic, literary, photographic, typographic, and more – that has a minimal amount of creative effort put into it attracts copyright for its maker. No registration is required. Copyright lasts for the maker’s life, and then another 50 years (70 in the UK and US). The maker then has rights to use the work and to stop anyone else from using it. Anyone who takes a substantial part of that work without permission is infringing those rights. And the courts have set the threshold pretty low: a few lines from song lyrics, a couple of pages from a diary, some paragraphs from a news article.

On one level, of course, this seems fair enough. If you put in the creative work, you should be able to reap the rewards. There’s a powerful (though not undisputed) case that authors, for example, will be less likely to write and publish books if you or I could whip out, buy a copy, photocopy it, and flog off the pirated versions at whim. If that happened, the world would be a poorer place without those books. Looked at in that light, you can see copyright protections as bastions of free speech: they incentivise speech by rewarding it, and expand the diversity of speech available to the public.

Of course, looked at in another light, copyright laws are an attack on free speech. They seriously inhibit the flow of information by locking up vast quantities of material in boxes that we need copyright owners’ permission to open. One upshot is that information that might be important in the public interest – might be momentous news – might be in those boxes.

There’s one good answer to that concern. Copyright doesn’t grant ownership of the information itself. It just protects particular ways of expressing it. So while the person who uncovers and writes the first story about a corrupt politician has the right to stop anyone reproducing that story verbatim, she can’t stop anyone else from revealing the information, provided they use their own words. In fact, in one case, a judge held that this was a complete answer. As long as everyone has the right to express the idea in their own words, copyright laws don’t restrict the right to freedom of expression in s 14 of the NZ Bill of Rights Act 1990 at all:

…for what is protected there is the right to express and receive ideas and opinions. Section 14 does not provide a guarantee of a right to appropriate someone else’s form of expression. “Freedom of expression” does not mean freedom to copy the form in which authors have expressed themselves and without consent having been given. (TVNZ v Newsmonitor Services Ltd [1994] 2 NZLR 91)

I can’t see how this works. Section 14 includes the “freedom to… impart information and opinions of any kind in any form”. On the face of it, that includes the form in which it was originally written by someone else. Copyright laws might well be a demonstrably justified limitation on freedom of speech, but they are a limitation.

Why does this matter? Because sometimes, verbatim copying or the use of someone else’s photographs or footage might be necessary to tell the news story. The precise words might be news. The exact words used in a leaked memo might be much more revealing than a mere description of them. A key photograph might tell a story in a way that no words could. What’s more, even if copyrighted material isn’t essential to the news, it is often helpful in presenting it in a way that helps us understand it.

What about fair use? In New Zealand, our fair dealing defences are much narrower than the American “fair use” defence, though many don’t seem to realise that. They protect the use of extracts of copyrighted material for the purposes of reporting current events, or for criticism or review (see s 42 of the Copyright Act 1994).

That sounds fairly wide. But it’s not. Restrictions abound. Often there must be “sufficient acknowledgement” of authorship. The criticism defence only applies to criticisms of a work (and not, for example, of a person or a policy). The current events reporting defence doesn’t apply to photographs. And “current events” has been construed narrowly. Satire and parody don’t seem to be covered. The best that can be said about these limitations is that they are widely ignored. But that’s hardly satisfactory. What’s needed, I think, is an expansive interpretation of these defences, prompted by a proper understanding of the Bill of Rights issues at stake. Even better: let’s reform the Copyright Act to widen the reporting and criticism defences, and add in parody and satire too.

News, criticism and satire lie at the very heart of freedom of expression. They’re getting short shrift from our copyright laws.

First published in NZ Lawyer magazine

Topics: Copyright, Internet issues, NZ Bill of Rights Act | 19 Comments »

19 Responses to “Copywrongs”

  1. pohutu Says:
    April 14th, 2012 at 12:04 pm

    I’ve wrestled with this. I was doing some research at ATL in wgtn among some papers lodged by an individual and wanted to quote some brief excerpts from her diary. The library staff said that even though she was dead, I’d need permission from her family. Because the issue was controversial and the individual is on the opposite side of it from me (and the diary makes her look rather bad), I doubt I’d get it. So I tried to almost entirely paraphrase and just use “quote fragments” of the juiciest phrases, as in this sentence. I have no idea if this will help if it comes to it, but since I didn’t intend to quote more than a few paras anyway, it was frustrating. Mainly though, that I felt no one could give me any useful guidance in this case and ATL seems to err on the side of ‘get permission from everyone for everything.’

  2. Myles Thomas Says:
    April 20th, 2012 at 9:43 pm

    As a TV doco and ‘reality’ director I am very careful to not infringe copyright. It’s a major pain to edit around a scene because of background music or blur a TV in the background but we do it cos we can’t afford to be stung.

  3. JKing Says:
    May 23rd, 2012 at 3:11 pm


    Things are often given to the ATL *on the basis* that they will not be quoted from without permission. I know I have things I’ve deposited that I’m happy to be preserved for posterity and research … but wouldn’t necessarily want quoted from.

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