Published on the 05/04/2018 | Written by Jonathan Cotton

Innovation-unfriendly laws prevail as A/NZ lawmakers struggle to keep pace with technology…

Sorry, tech startups and software developers: These are not the copyright reforms you’re looking for. While New Zealand dithers with re-drafts of possible re-drafts, the Australian government has given the nod to a new bill excluding tech firms from expanded safe harbour provisions.

The proposed legislation, if passed, will extend Australia’s safe harbour provisions of The Copyright Act 1968 – provisions mainly concerned with protecting telcos – to include the disability, education, library, archive and cultural sectors.

That’s good news, but conspicuous by its absence is the tech sector. Startups, game developers and tech giants alike have been campaigning for years to overhaul the current copyright laws and for them, this a disappointing result.

A new Deloitte report commissioned by Google – Copyright in the digital age: Levelling the playing field – says as much, finding Australia’s current copyright system unsupportive of innovators and early stage startups in general, failing as it does to protect fair use in the digital realm.

“In Australia, the legal provisions permitting uses of copyrighted material take the form of ‘fair dealing’ exceptions and other prescriptive exceptions that specify types of uses which may be made of copyrighted material without infringing copyright,” reads the report.

“In contrast, a number of other countries most notably the United States rely on a ‘fair use’ test which, rather than specifying particular uses, sets out principles a use must meet to be regarded as non-infringing. Those principles include whether the proposed use is substantially new and creative – whether it is, in other words, genuinely ‘transformative’ – and whether it might have an adverse effect on the market for the copyrighted material it proposes to use.”

Though the Australian government initially envisioned a far broader set of provisions that included protection for online service providers, they have now opted for a softly, softly approach (despite urging from both the Productivity Commission and the Greens to expand the provisions). That could well be thanks to strident opposition to safe harbours from international rights holders.

Last year the MPAA – a body consisting of the big six Hollywood studios – Disney, Paramount, Sony Pictures, 20th Century Fox, Universal and Warner Brothers – released the 2018 National Trade Estimate Report on Foreign Trade Barriers slamming Australia’s perceived sluggish approach to protecting its media interests, and saying that “local policymakers should take care to ensure that Australia’s vibrant market is not inadvertently impaired and that any proposed relaxation of copyright and related rights protection does not violate Australia’s international obligations.”

Quite frankly, they’ve got a point. Both Australia and New Zealand are on the radar as flagrant violators of international copyright. And as for New Zealand specifically, with a copyright act authored in 1994 – and with the last substantial update taking place in 2008 – there are some gaps in the framework, to say the least.

“In the 20-plus years since the current copyright law was passed, the Internet has made it much easier for New Zealanders to share creativity with overseas audiences and markets,” says InternetNZ CEO, Jordan Carter. “But copyright law has not matched that pace of change. We have an iPod law in a smartphone world.”

That we do. Take blockchain as an example. How has that technology thrived while others have not?

“The first blockchain application, Bitcoin, was not patented,” writes Siah Hwee Ang, BNZ Chair in Business in Asia at Victoria University in a blog post. “It is not unique in this regard. Sir Tim Berners-Lee did not patent the world wide web. Likewise the internet was released to the public free from patent restrictions.”

“The lack of patents has meant that blockchain’s rate of development has been nothing short of breathtaking. Bitcoin, released in 2009, has a block time – the time it takes for a transaction to be recorded – of about 10 minutes. Ethereum, released in 2015 and designed to fix some of Bitcoin’s shortcomings, has a block time of around 14 seconds.”

“The question is: are our current intellectual property laws fit for purpose if three paradigm-shifting technologies – the internet, the world-wide-web and now the blockchain – are flourishing in the absence of protection under such laws?”

“The question is: are our current intellectual property laws fit for purpose?”

Put another way, just how much innovation is being lost in New Zealand and Australia thanks to our collective inability to keep legislative pace with technology?

Last month InternetNZ released a position paper addressing what it sees as the digital copyright issues facing New Zealand, and it’s advice is applicable to both sides of the Tasman.

The group says that current laws fail to address the pressing issues surrounding cloud computing sovereignty, text-and-data-mining, and online platforms (among others), and urges the government to create safe-harbour principles “as a shield for Internet-based innovation”.

It also advocates for the creation of “a broad, open-ended exception to allow the law to adapt as technology changes and aligning New Zealand’s permitted acts and exceptions with the more innovation-compatible rules in Israel, Singapore, and the United States”.

In such a contested and rapidly-developing space, that’s as good a place to start as any.