Release of the Copyright Act Review Issues Paper
In November 2018 the Ministry of Business, Innovation and Enterprise (MBIE) released the issues paper for the review of New Zealand’s Copyright Act 1994. MBIE are now inviting interested parties to put forward submissions which will inform a new or updated copyright legislation. As part of the public consultation MBIE are holding workshops in February Auckland, Wellington and Christchurch which aim to bring together different perspectives and hear from both users and creators of works. Submissions will be accepted until 5pm on 5th April 2019.
The GLAM (galleries, libraries, archives and museums) sector in New Zealand now has the rare opportunity to speak up and be involved to create a fairer copyright regime that permits cultural heritage institutions to better fulfill their public responsibility.
Workshops in February are being held around the country to help make the copyright act work better for GLAMs and help draft submissions. More information about how you can get involved is available at the end of this post.
Why is copyright so important to GLAMs?
With the rapid rise in digitisation of cultural heritage collections it is now even more important than ever that cultural institutions ensure they are copyright compliant. Copyright is a very confusing and complex task to deal with and is often a barrier to releasing digital versions of collection items. Understandably, copyright assessment and licensing typically becomes a low priority compared to ensuring an object or artwork is physically cared for and looked after.
Copyright arises automatically as soon as a creative work is made, and in most cases the first owner of copyright is the person who has created it. If they were employed or commissioned to create the work, then the employer or commissioner is generally the first owner of any copyright in a work (under NZ copyright law only). A common misconception is that if you own or buy a work then you own copyright, this is not the case in most instances.
Copyright applies to artistic works (paintings, drawings, sculptures etc.), literary works (letters, books, articles, etc.) musical works, photographs, films, sound recordings, and computer generated works. These works make up the majority of collections held by cultural heritage institutions and number in the hundreds of thousands of individual objects.
The duration of copyright generally lasts for the lifetime of the creator and 50 years from the end of the year of which they died. That is roughly three generations. Once the creator dies, the copyright passes down automatically to their beneficiaries.
A copy of a work is created through a reproduction, this includes a digital photograph. In order for museums to be copyright compliant and display an image online of a collection object (even for free, public good, non-commercial purposes) they must ask permission from the copyright owner, usually in the form of a copyright permission agreement. Tracing copyright owners can be a resource and time heavy task as it requires genealogical research and visiting archives to read probates. Sometimes this search is fruitless and no copyright owner can be traced, leaving the work an orphan work.
Access today is not just a physical exhibition — public expectation is that everything is also available online.
What are the main issues?
Not only do GLAMs have to gain copyright permission from a copyright owner, they also have to decipher complex copyright legislation that is outdated and in parts poorly written. One of the biggest issues that museums face with New Zealand’s current copyright law is that they are generally excluded from the library exceptions in Part III of the Act. This means that Libraries are able to reproduce or copy works if they are a prescribed library for members of the public, for certain acts. Museums are unable to do the same even if they hold the same object and must seek copyright permission from the copyright owner first.
MBIE have also made a commitment within the issues paper to consider the WAI262 claim in regards to Māori traditional knowledge. The claim seeks rights for taonga, including indigenous flora and fauna, intellectual property rights over cultural ideas, designs and language. GLAMs hold a wealth of Māori taonga so it is important that we support and advocate for better protection of indigenous rights.
Another issue that the wider GLAM sector faces is the lack of orphan works provisions in our current copyright legislation. An orphan work is an object that is most likely still in copyright, but where no copyright owner can be traced after a diligent search to a high standard. There is also currently no best practice ‘due diligence’ guide either so museums are unsure what they can do with these orphan works. This puts those GLAM institutions in conflict. The public mandate, and in some cases, legislated function is to provide access to their collections to the public. Access today is not just a physical exhibition — public expectation is that everything is also available online. Copyright barriers are preventing GLAMs from meeting this public expectation.
The current Act allows fair dealing exceptions, which are for private study and research, criticism and review. Fair use in the US is used as a defense and allows a greater and more flexible use of material in copyright. MBIE have stated fair use isn’t up for discussion at this stage, but an alternative to this could be a safe harbour that includes educational institutions, libraries, archives and key cultural institutions — similar to the recently passed Australian legislation.
What other issues are GLAMs facing with copyright?
Another issue facing the GLAM sector in New Zealand is the duration of copyright for photographs. Prior to new Copyright Act 1994 copyright duration for photographic works lasted for 50 years from the date of creation. When the new act was introduced in 1994, photographic works had the same copyright duration as artistic works (life of the creator + 50 years).
The rules transitioning from the previous act to the new act are badly written making it uncertain as to whether the works that were out of copyright using the old rules are back in copyright under the new rules. This oversight has made it confusing for GLAM institutions and the lack of guidance has caused debates within the GLAM community and their legal advisors. While most have interpreted this in favour of all photographs taken prior to 31 December 1944 have no known copyright restrictions, there are some that are reluctant to reproduce online digital reproductions of affected photographs. This type of uncertainty continues to have a chilling effect on the digitisation and accessibility of the cultural heritage of New Zealand for the public.
The harmonisation of copyright duration from 50 years from the death of the creator, to 70 years, is another issue that may be raised in public submissions. While this would bring us in line with UK & US copyright law, it represents a substantial increase of an additional 20 years before a work enters the public domain where it can be reused, remixed without requiring permissions and licensing. MBIE have stated they have sufficient evidence that extending copyright duration has no immediate benefits and that this is not part of the issues paper. However, it is important that GLAMs are aware of this and make a point to confirm the lack of benefit from extending copyright duration.
How to get involved
If you’re interested in learning more about copyright or putting forward a submission on the Copyright Act Review issues paper, below are a few ways you can get involved.
National Services Te Paerangi Workshop: The Copyright Act — Make it work for you!
National Services Te Paerangi in partnership with Museums Aotearoa and AUT are holding workshops around the country in February 2019. Join Victoria Leachman, Rights Manager, Te Papa and Sarah Powell, Copyright Advisor, AUT, in Auckland, Wellington, Christchurch and Dunedin. These one day lean coffee workshops will discuss what key copyright issues GLAM professionals face when preserving, caring for, digitising, and using collections and copyright work. Part of this workshop will also support and offer tips on submission writing.
Auckland: Friday 15th February 2019 at AUT
Christchurch: Wednesday 20th February at the Brevet Lounge, Air Force Museum, Wigram
Wellington: Friday 22nd February at Te Papa
Dunedin: Wednesday 27th February at Otago Museum
Time: Day workshop, 9am — 4pm
Cost: This workshop is free to attend
MBIE: Copyright Act Issues Paper Workshops
The Issues Paper will be workshopped at the following locations and times:
Christchurch — Tuesday 12 February 2019, 12pm — 4:30pm at the MBIE Cashel Street office (161 Cashel Street)
Auckland — Thursday 21 February 2019, 12:00pm — 4:30pm at New Zealand Trade and Enterprise (139 Quay Street)
Wellington — Friday 1 March 2019, 12:00pm — 4:30pm at the MBIE Head Office (15 Stout Street)
By Sarah Powell & Victoria Leachman