Jane Kelsey: Hollywood lays down its own law

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The threat to US intellectual property rights were in the background of John Key's visit to LA last week.

While John Key was in LA talking to Hollywood producer John Landau (left) and director James Cameron, top US intellectual property negotiators were in Wellington. Photo / Supplied
While John Key was in LA talking to Hollywood producer John Landau (left) and director James Cameron, top US intellectual property negotiators were in Wellington. Photo / Supplied

The focus on the Kim Dotcom saga missed the deeper significance of Prime Minister John Key's recent trip to Hollywood. The movie industry's main motives for wining, dining and flattering the Prime Minister were not about Dotcom or subsidies, although it has an obvious interest in both.

The end-goal is to get Key's Government to drop its opposition to aggressive United States demands in the Trans-Pacific Partnership Agreement (TPPA) negotiations. New Zealand will host the next round of TPPA talks in Auckland in early December. While John Key was in Los Angeles, top US intellectual property negotiators were in Wellington lobbying for their latest proposals.

Our negotiators have led the way in resisting US demands for radical extensions to intellectual property laws, which are designed largely by and for Hollywood. They fear the US proposals would have a serious impact on technology-driven innovation, open access to the internet, privacy and the interests of ordinary consumers.

So do New Zealand organisations ranging from the Libraries Association, Royal Society for the Blind, Consumer NZ and the local IT industry, who have co-sponsored a website www.fairdeal.net.nz.

Hollywood is determined to succeed. The movie and music industries are the two most powerful copyright lobbies in America. Their dominance of the global entertainment industry is threatened by rapidly evolving technologies they cannot control and competing production centres in India, South Africa and Brazil.

To stem their decline, they have invested substantial financial and political capital in securing global rules that protect their power and profits into the 21st century.

The industry tried and failed to achieve this in hard fought negotiations for an international copyright agreement known as the Anti-Counterfeiting Trade Agreement or ACTA. After the secret text was leaked in 2009, massive protests broke out around the world, including in New Zealand.

Renewed protests this year saw the European Parliament overwhelmingly reject the agreement. It seems unlikely to be ratified by enough countries to come into force.

The TPPA is now the vehicle for their "gold standard" global rules that will bind all the signatory governments through the next century and create rights that the industry can enforce directly against governments in secretive offshore tribunals. Even good "gold standards" come and go. The internet has proved that governments need flexibility to adapt to new technologies and changing times.

While TPPA negotiations are shrouded in secrecy in this country, the US operates a system of cleared advisers who see and comment on draft texts and informs the US position.

The music industry sits on the committee that advises on intellectual property, while the Motion Picture Association of America sits on the committee dealing with services, such as audio-visual production, broadcasting and distribution.

Several leaked texts of the intellectual property chapter reveal the far-reaching effects that US proposals would have on New Zealand business, educational institutions and consumers.

One target is a ban on parallel importing of books and DVDs. The Warehouse has warned about the cost increases for shoppers, but it would also massively hike the costs for the cash-strapped university and public libraries.

People who buy DVDs from the US or Europe often find there are locks that prevent them being viewed here. Using devices to circumvent that coding, even where the DVD was bought legally, would become illegal. Many education institutions currently use these mechanisms to access material produced in other parts of the world.

The monopoly copyright term would be extended from the current life of the creator plus 50 years to over 100 years, further increasing costs.

Perhaps the most stifling proposal in terms of innovation targets the internet, which operates as a giant copying machine. New rules would control temporary electronic copies that move information from point to point, effectively installing tollbooths along the electronic highway.

Internet Service Providers would be required to police the internet, identifying and cutting off infringers and sending their names to the industry. Many current privacy safeguards would disappear.

Under "notice and takedown" rules they would have to enforce notices that are often invalid or open to legal challenge. Recent research shows some ISPs in the US have received around 30,000 notices, only two of which were valid.

This is too high a price for the jobs and publicity that subsidised mega-productions bring to New Zealand and would stifle the growing local industry. Hollywood even opposes a weakly worded cultural exception in New Zealand's trade agreements that allows support for creative arts of national value, including film and creative on-line content.

Ironically, that was introduced when Helen Clark was told that local content quotas like those which support Australia's film and music industries would breach a commitment National made secretly when the World Trade Organisation was formed in 1995.

History is at risk of repeating itself, at serious cost to New Zealanders.

Professor Jane Kelsey is the author of No Ordinary Deal. Unmasking the Trans-Pacific Partnership Free Trade Agreement, Bridget Williams Books.

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