• Nico de Jong

Taking the Mickey out of the TPP - Do we really need to extend copyright again?

I was interviewed last week for a documentary on the Trans-Pacific Partnership (TPP). The interview was all about the intellectual property chapter for the TPP and what effect it would have on NZ, assuming the agreement passed along the lines of what was expressed in the leaked papers. It will be interesting to see how the documentary plays out given the TPP is a done deal now and we are now awaiting the specific details of what has actually been agreed to (which may or may not be similar to the terms in the leaked papers).

The life of pharmaceutical patents was always going to be extended given who was at the table, and I understand this is what has been agreed to. This could actually be beneficial for NZ as a whole if NZ gets more into the drug development scene. But there will be additional costs to NZ consumers (who pay tax) because the Government will be paying for patented drugs for longer.

One thing that really gets to me is the life of copyright protection. As I understand it, copyright protection is meant to incentivise people to create works (such as books or sound recordings or movies) by giving them the comfort of a period of time when they have exclusive rights to the work, including commercialising the work and collecting royalties for use by others. Apparently, when the notion of copyright was first recognised in the USA, the term of protection provided was 14 years, which could be extended for another 14 year period before the work entered the public domain. The standard term in the USA is now the life of the author plus 70 years. It is the same in Australia. The standard term in NZ is the life of the author plus 50 years. But I understand the TPP will change that, or has changed that, and NZ will now be in line with the US and Australia (and other countries).

In my view, 70 years beyond the death of the author of a copyright work is far too long to maintain copyright protection for. How much of an incentive do you need to write a book or to create a sound recording or a movie? Not royalties for 70 years, let alone beyond your death. That is just taking the mickey (no pun intended with Mickey Mouse, whose copyright lives on, by pure coincidence I am sure).

If anything, in my view, copyright protection should have decreased over time as technology has facilitated the instantaneous and effortless publication and exchange of information through various means (that copyright laws are struggling to keep up with).

In my mind, one of the major issues with copyright is the grey area between what constitutes copyright infringement and what does not. For example, when listening to a sound track, people have different views on what sounds similar to an earlier produced sound track and what does not, let alone what is similar enough to constitute copyright infringement. This makes it extremely difficult for people to know whether they are going to be had up for copyright infringement (particularly where they have not consciously copied someone else’s work and copyright infringment proceedings come as a complete surprise). The same goes for lawyers advising their clients on infringement issues or claims. If whether or not something infringes copyright is a moot point, you cannot wait for 70 odd years to be safe, and you may not want to run the risk of being sued in the meantime. The option of not doing anything for fear of being sued actually stifles innovation and creativity, something copyright is supposed to enhance.

The copyright term was never going to be reduced by the TPP. But, nevertheless, it makes no sense to me to keep increasing it (as I understand NZ has now done as one of the things to get the deal over the line). That said, I am assured by the NZ Government that overall NZ will be better off from the TPP. I genuinely hope this proves true.


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