Weird, hyperbolic, and positively Trumpian response to the MBIE copyright law review.

I’ve been in trouble with the Publisher’s Association before, so it may happen again with this.

Trawling through Christmas time Facebook, where its mostly baby Yoda memes and pictures of decorated trees, a friend had posted a link to the New Zealand Society of Authors; Publishers Association of New Zealand and Copyright Licensing New Zealand Interim Response to New MBIE Paper.

It appears to be written after a meeting of the groups (maybe over a gin) and it honestly the strangest thing I’ve seen for a while. The document it refers to is Review of the Copyright Act 1994: MBIE’s approach to policy development. This is a document released during the process of reviewing NZ’s copyright law, and it it generally explains where they have got so far in their thinking after some detailed consultation. I’ve been partly aware of my professional association – LIANZA – my workplace and tohatoha’s responses. They are as you’d expect – copyright is a good idea in general, but copyright holders can clog the flow of information in pursuit of their business models. The MBIE response is calm and measured – we can’t do anything against international treaty, there are motives to create other than direct financial reward, but lets make sure creators get their due.

Publishers are absolutely fundamental to this process. They provide a valuable editing, selection and marketing process without which finding and disseminating new stuff would be really hard. You can’t just throw everything in a big bucket and expect people to find what they need. I happily pay for others to trawl through content that I could get for free to get me the stuff I want (or they think I want).

The paper though, accuses MBIE of attacking the creative sector, denying creators a living, redefining ‘access’ as ‘free use without paying the creator’, and accusing publishers of ripping off their customers. Reading the two things side by side its obvious someone has really worked hard at taking things deeply out of context to arrive at their conclusions. There is one new objective that has been added to the process that really seems to have ticked them off;

Support creators to obtain fair recognition for their creative effort, exercise a reasonable degree of control over the integrity of their work, and obtain a fair proportion of any revenue attributable to their creative effort.

Review of the Copyright Act 1994: MBIE’s approach to policy development p21

From my perspective none of the creators I support get paid for their work. it is given, for free, to publishers to then charge us to read. And y’know, that’s OK. My colleagues create work as a result of the job they are paid to do, and we’re happy to support the publishing functions I described earlier, that all costs money. I’m happier when the business model used means everyone get access for free to the work, and payment for the services happens either indirectly – we pay people who review and edit these publications as well – or directly – as a charge to publish or patronize a publishing platform. The MBIE paper recognizes that not everyone writes for money in return for rights – this blog is a good example. The Author’s and Publisher’s response is that MBIE says the creative sector is “built on distributors and investors ripping off creators” (p1). Many billions of dollars in publisher’s profit (a fair few million from NZ alone) might argue that could be partly true.

It’s a pity the three importantly named organisations can’t respond more cogently. They take the risk of being ignored by taking a hyperbolic tone, something the recent discussions around academic access are becoming increasingly free of. By claiming that MBIE thinks creators don’t need to be paid, they disguise what could be an interesting point about how those who don’t currently earn a share of publisher’s profits (like, say, academic researchers) could be recompensed. They could start covering their publishing charges….

2 Replies to “Weird, hyperbolic, and positively Trumpian response to the MBIE copyright law review.”

  1. Dear Anton,
    The ‘publishing’ you talk about is specifically academic publishing for academia and academic libraries – only one of the three local publishing models, yet you sound as if you speak for the entire publishing sector. As you say academics write while on institutional salaries, and often choose to disseminate it for peer review and career advancement.
    The publishing models for trade books and educational (schools) publishing are very different models. Those authors do not get paid to write and research and must seek compensation through the publication of their work.
    The collective response was conceived (with narry a gin in sight) as a response to the deeply troubling new framework issued by MBIE with an emphasis on the human rights aspects of access. The new framework mirrors that suggested by big tech in their submission, we know big tech has no concern for the rights of creators. They care about the profits of big tech. The paper tellingly does not mention the parts of the human rights act which gives creators the right to be recognised and compensated for their work.
    The publishing and writing sector was utterly failed by MBIE this year on the Marrakesh Treaty Amendment Bill. This bill gives free access to a further 24% of the population (anyone identifying with a disability ) IN ADDITION to the exisiting exceptions for research, education and libraries. Who is left to sell a book to, we may wonder?
    How do you think this affects authors incomes? In addition, the select committee removed the existing commercial availability test from our legislation – which means if NZ publishers produce epub3 formats at the time of publication – it will make no difference to those wishing to create home grown accessible formats. Those given the right to create accessible formats now has increased to over 3000 institutions in NZ. None of this increased access has been compensated.
    PLR (Public Lending Right) has been a stagnant fund with no investment CPI increase since the Helen Clark government – it does not include digital or audio lending, it does not include private libraries like the Blind Foundation who do over 560,000 loans per year. In fact authors are the only ones who do not get paid as accessible formats are produced and circulated. NZ has no ELR (or educational lending right) that compensates children’s authors and illustrators for the use of their books in school libraries. And in classroom use – our writers and poets and musicians and film-makers only receive a copyright licence fee from 70% of schools, as the MOE seems to think a copyright licence is not an essential compliance – not a view they dare hold about microsoft licences we note.
    The new framework of the copyright act review has moved the goalposts, has clearly taken its lead from Big Tech, and appears to be heading down the path the Marrakesh treaty took (section 69 of the copyright act).
    Increased access, is good for big tech who gather advertising income from sites that give away authors property for free – is the opposite of supporting the rights of the creator, or upholding the economics of trading intellectual property across the creative industries.
    I would ask you to consider how authors (current av income 2018 $15,200 PWC) are supposed to be compensated for their work, and to explain why their work should be legitimately used for free, without compensation? This is theft and this singles out writers. No-one asks Karen Walker to give away over 25% of her creations for free, nor theatres or orchestras asked to give the equivalent tickets away so everyone can ‘access’ work. You seem to be spouting another Big Tech line, about copyright ‘clogging up the flow of information’.
    Our exceptions are already vast and are not compensated like Australia or the UK. How do you suggest our authors make a living?
    Jenny Nagle
    CEO NZ Society of Authors Jan 2020

  2. If you’ve come to my blog for the first time with this post, you’re forgiven for not realizing I come to this from an academic librarian’s perspective: and it is very different to the creative sector. I come from a family of artists, a community that holds creative work very seriously indeed, and a political milieu that holds the special mix of imagination and hard work art embodies as the finest thing our species does. Writing is too hard not to do for money. This blog (cc-0) is a tangential effort to extend my career – it’s deeply self interested, and for, in the end social capital and hopefully financial capital.

    Your comment about being captured by ‘big tech’ is a pertinent one. It’s one I’ve struggled with in FLOSS for the last 25 years or so. Sometimes big tech does the right thing for themselves and the community. OSX and the mach kernel. Microsoft adopting the Open Document Format. TCP/IP. It’s always fraught though, because there are tensions between shareholders demanding companies grow, infinitely and indefinitely, and sustainability, culturally and environmentally.

    So, where does copyright fit in? Well, as I’ve said (often, repeatedly, in public, in private) it’s a good thing as it tries to ensure creators are given rewards for their endeavours. Those that support creators deserve to be able to make good business. The problem comes when capitalism does its job, and tends towards monopoly and concentration of capital as it always does. And so it is in academic publishing. Superprofits made by huge international corporations on the backs of content they are given for free, but certainly weren’t developed for free. Here copyright is used to deny access to information that can change, and even save people’s lives. That they themselves paid for. That’s what I mean about copyright clogging up the system. Ludicrous situations where AA Milne’s work pops out of copyright in the US and then back in when someone realises they might lose profits from Mickey Mouse.

    There’s even an argument that within the datasphere we are entering an age of economy of plenty. We’ve never studied or well understood the nature of plenty other than the fallacy of the tragedy of the commons. It seems that in capitalism there is a tendency to try to capture the entire domain ($ of disk → 0 ∴ Amazon Web Services) but like I said, not that much thinking seems to have been done about it.

    I would never argue against automatic copyright as a mechanism in order to encourage the creative spirit of authors, creators, engineers, and makers. Its just the implementation I have an issue with.

    It’s sad there are authors and publishers that want to restrict their work to the rich and able. To deny the ability to do research on their work, in the name of lost sales. They’ll be after the libraries next.

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