Kiwi music loses if New Zealand gives up copyright sovereignty

With the Trans-Pacific Partnership Agreement negotiations having just occurred in Melbourne I’m urging the Government not to surrender New Zealand’s sovereignty on copyright so we can keep enjoying Kiwi Music in the public domain.

Under a leaked draft of the TPPA, copyright length is to be extended from 50 to ‘…not less than 95 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram,’ meaning music and recordings set to enter the public domain in New Zealand will take decades longer.

An iconic song that would be impacted by the copyright extension is the Fourmyula’s “Nature” which was voted the best New Zealand song ever written. Produced in 1969 this song should enter the public domain in 2020 to be remixed, re-played, and re-imagined however under proposed TPPA rules Kiwis would have to wait to 2065. Likewise Ray Columbus’s “She’s a Mod,” released in June 1964 wouldn’t enter the public domain till 2059.

The extension in the term of copyright would mean no new works would enter the public domain in New Zealand until at least the late 2050s negatively impacting access to New Zealand culture and history. In particular ‘orphan works’ that aren’t available commercially would just not be accessible.

Kiwi listeners and artists will miss out on freely accessing Kiwi classics until the 2060s not benefiting the musicians who would have likely died decade’s prior, but benefitting mostly very profitable businesses who own the copyright. Copyright is about finding a balance and I welcome a discussion – should it be 40, 50, 60 years etc. but I think 95 years is extreme. In the UK, the Gowers Review of Intellectual Property concluded: the copyright term of recorded music should not be extended from the current 50 years after the date of recording to 95 years.

Extending the term of copyright would mean many GOLDEN DISC AWARD winners including Maria Dallas – “Tumbling Down,” Lee Grant – “Thanks To You,” Allison Durbin – “I Have Loved Me A Man,” Shane – “Saint Paul,” Craig Scott – “Lets Get A Little Sentimental,” and Hogsnort Rupert – “Pretty Girl,” wouldn’t enter the public domain over the next ten years.

Also impacted is “Blue Smoke”, composed by Rangi Ruru Wananga Karaitiana (d. 1970). “Blue Smoke” was the first record wholly produced in New Zealand from composition to pressing, and should enter the public domain in 2020 but wouldn’t till 2065. The songs of Peter Cape (d. 1979), which include  “Taumarunui On The Main Trunk Line”, “The Okaihau Express” and “She’ll Be Right Mate” which should enter the public domain in the 2030s but won’t until the 2070s.

The TPPA wouldn’t just affect our music but also our literary works. I’ve researched a list of New Zealand Books that would also be impacted by copyright extension that includes books by James K. Baxter, Dame Ngaio Marsh, the novel Came a Hot Friday and what’s considered New Zealand’s first gay novel.

The most worrying aspect of the TPPA is the secretive process. The Government needs to be up-front and transparent with the people of New Zealand. What does the New Zealand Government think about the U.S’s intellectual property proposals, will they give up Pharmac or the ability to control things like tobacco to get the trade deal through? What do you think, should we surrender our copyright term sovereignty?

34 thoughts on “Kiwi music loses if New Zealand gives up copyright sovereignty

  1. I hear the corporations make 95% of the profit from music sales, the artist gets a mere 5%, I see why the corporates are pushing so hard…
    Artists only complain due to lack of profit themselves!
    Most artists however welcome downloaders of their music, it gets their name out there.

  2. @photonz1

    This may sound like a stupid question but, if they take that long to break even, then how are you financing it? Bank loans? If so that is a huge risk, no matter what period the copyright is for. What motivates you to produce these works?

    Also, to your other point. Theoretically it should be in the public domain after 10 years. So how can they, apart from doing cheap knock-offs, make a killing from your work once it’s in the public domain?

    Copyright is just one aspect to a larger problem of power and the distribution of wealth. The two being very intertwined.

  3. terrasea says “Copyright holders, under my proposition, will get ten years to get some reward from the work”

    Many of the photoshoots I’ve done take longer than that just to get to break even.

    Some of my books have taken longer than 10 years to get to break even, especially in a market like NZ.

    Under your scheme, the big corporates could make a killing from all the small creatives who don’t have the same power to monetise their work.

  4. Copyright terms are already far too long. No one writing a book or a song is going to stop because they’re worried about what will happen 50 years after they’re dead, let alone 70. 30 years after creation seems plenty to me.

  5. @photonz
    “Large companies ALREADY seriouly abuse copyright of writers, artists, musicians and photographers.”

    So we agree on this then?

    I don’t think anyone is saying we get something for nothing. Copyright holders, under my proposition, will get ten years to get some reward from the work. And I’m talking about from the moment it’s published, not the amount of time it takes to produce it.

    If it doesn’t get much money, then that is the gamble you take. You take this gamble at the moment anyway, as there is no guarantee the work will produce any reward. Making the period 10 years will not make much difference to that, except for edge cases. I don’t think edge cases should have any influence on the copyright period.

  6. Part of what frustrates me about all of this is that historically it’s largely driven by a small minority of mega-corporations that want copyrights they own to never expire (yeah, that’ll encourage them to be creative for society’s benefit!), and are doing so by trying to extend copyright across the board. This is stupid — they knew the rules and the terms when they got into the business, but whatever. Among other things, though, it means that squillions of old works everywhere remain under copyright without an interested owner, and can’t easily be rescued or re-published for society’s benefit before being completely lost…. even though one of the main points of copyright has always been to encourage creation of works for society’s benefit.

    A nice thing with early US copyright law was to grant automatic copyright for 14 years, then give the holder a right to renew the term and keep a monopoly on distribution for an additional 14 years if they still actively wanted it, before the work was finally released back to the public.

    Whatever people might think about how long a creator/publisher should be allowed to keep their monopoly in total, why was this mechanism never implemented more globally, or kept in the US, and why can’t the likes of photonz1 register to retain their copyright on works that they’re still actively using and licensing without crippling legal access to all those works that the author no longer cares about?

    Simply increasing copyright term for everything across the board to favour a minority of works held by a minority of businesses, at the expense of access to vast amounts of other work of which copyright holders no longer care, is stupid and selfish.

  7. The unearned income line can be taken too far – after all people earn the money they save. Savings are just the value people have stored (like labour invested in a green exchange). And savings are required for an economy to operate. And those who save it into Kiwi Saver accounts are even given tax incentive help to do so (a billion dollars worth a year) and then receive the “unearned” income off these savings accounts when they reach 65. The unearned income is really only the tax subsidy. And oh the irony those who pay interest income off their saved earned income are funding this tax subsidy.

  8. Photonz – you still haven’t explained why its OK that Bell may be the most ripped off man in history. Its generally bantered around that the telephone was the most profitable patent ever, yet poor old Bell (and his heirs) only got 20 years worth of income from it, rather than the 141 years he would have received if patents worked like copyrights are supposed to work.

  9. Photonz – the way that todays money works today violates the laws of thermodynamics. This is a DIRECT explanation for the failings of economics over human history. There is absolutely NO way that having money should cause one to have MORE money. It has to turn to nothing over time. Use it or lose it is the rule in the natural world when it comes to work…. and money correctly represents “work done” and never EVER debt, as our money attempts to do.

    It is theoretically, morally, environmentally and practically wrong to define “money” the way we do.

    BJ

  10. As for money in the bank, inherited unearned income and copyright there has to be a stage where for the sake of economic efficiency, a socially functioning society, fairness and equality we have to say enough. Wealth cannot be constantly increased and hoarded by one family just because an ancestor earned some of it.

    As Bill Gates says. Why should his children be entitled to billions, just because their parent earned it. A proportion maybe.
    Effectively millionaire heirs, and record companies, are parasites, living off unearned wealth, without making a corresponding contribution to the society they live in.

    Most make less of a contribution to society than solo mums, while using a far greater proportion of common resources.

  11. photonz1, say you build a table and sell it. You get the money for it and that’s it. Why should your copyright be any different, why should it be worth more that a patent. The copyright business model is broken and unbalanced.

    Why should someone being just as creative not be aloud to remix your work or satire it for close to 100 years.

  12. SPC says “Other people do the same thing in (often poorly) paid work by saving money in a bank and they pay interest on their savings income.”

    But there’s not a point in time where you say this money in the bank is no longer yours and the rest of the world can use it as they want.

    That’s what you want to do with my “money in the bank” / copyright.

    You have another fixation – capital gain.

    Most people I know who earn their money from their creations – writers, musicians, artists, photographers etc – have a DECLINE in the value of their creations over time.

    Their writing from the 1970s is worth much less today. Ditto with photographs, and music. It was worth much more when it was new, contemporary and in fashion – not out of date.

    Art prices may go up in value, but then it’s not the generally the artist who owns the work.

    And I’ve actually argued before that interest from money in the bank should not be taxed at the high level it is.

  13. Other people do the same thing in (often poorly) paid work by saving money in a bank and they pay interest on their savings income. This applies when the interest income is no more than inflation and taxing the money means their savings are declining in real value. And this in a country overly dependent on foreign borrowing.

    But those who worry about their copyright/intellectual property, their capital gain being untaxed etc don’t seem to care much about that, so then why should …

  14. terrasea – copyright protection is very weak now.

    Large companies ALREADY seriouly abuse copyright of writers, artists, musicians and photographers.

    And the legislation is too weak to do anything about it.

    In any other industry, my lifetimes work building up a business will be my retirement savings and a legacy for my children.

    Why should this be taken away from creative people, just because people want to use their creations for free?

  15. We should not be crippled by long term copyrights to allow someone to produce a really expensive piece of work that takes more than 10 years to make a profit.

    Copyright, unfortunately, has turned into a million dollar industry with some vested interests wanting to keep these ideas to themselves for as long as possible. These people are quiet often not the ones who came up with the idea either. So someone else does all the work, and gets hardly any reward. While the big players get to hold on to these works for ages, profiting off them, while the rest of us can’t do anything with them without paying an arm and a leg.

    Shortening the copyright term, in my opinion will help level that playing field, and extract these ideas from the big corporations who sit on them, so the rest of us can use these ideas for the benefit of society as a whole.

    We are not free from exploitation from big companies. To overcome this we need to address the distribution of wealth. Setting copyright to last for a long time will not help us address this wealth distribution, I think it will actually do the opposite.

  16. I guess the interest to declare by those with some intellectual property or copyright to protect, is that any extension of the term to say 95 years increases the value of their work. Thus the value they can sell any company owning their work for. And by association the money they could raise selling shares in their company.

    Thus the same motive that they have for opposing a CGT.

  17. dbuckley says “What is cool about benefitting from Intellectual Property is that once the IP is created, no further “work” is required to continue to benefit from it.”

    1/ This is exactly the same with other property, like my retirement investments, or my farm or my business if I get someone to manage it, or if I’m a lsilent partnetr, or for my commercial property that gets rent.

    2/ I spend a huge amount of time and money to market and licence my intellectual property, and would only earn about 10% of what I earn if I stopped doing that.

    3/ And you are also missing the point that in most cases, without a long period of often unpaid work gaining the experience needed to create something saleable, the creation of the works is unlikely to have happened.

    So the payment for my creative works have to cover year of gaining experience, creating the actual works, and years of marketing.

    Some photo shoots I do take ten years of sales just to pay for the shoot. Taking as short as three years to break-even is pretty rare.

    dbuckley says “Gerry Rafferty collected around 80 grand UKP per annum for a song he wrote in 1978 until his death last year. His sucessors will continue to receive that income for many many decades to come, without doing a thing. How is that fair?”

    It sounds very fair to me. Some people win lotto – is that fair?

    What’s not fair, is that if you, or Sony, can come along and make profits out of Reffertys song when you haven’t had a thing to do with making it.

    The majority of artists, musicians, writers, and photographers earn LESS than the average wage – they’re not Rafferty / lotto winners

    If anybody could simply create a “Baker Street” then we’d all be doing it.

  18. PhotoNZ – your arguement fails because you are deliberatly comparing chalk and cheese.

    What is cool about benefitting from Intellectual Property is that once the IP is created, no further “work” is required to continue to benefit from it.

    So in your example of the catering business, your successors will only continue to benefit if they continue to run the organisation profitably. Whereas with intellectual property no further work is required.

    Gerry Rafferty collected around 80 grand UKP per annum for a song he wrote in 1978 until his death last year. His sucessors will continue to receive that income for many many decades to come, without doing a thing. How is that fair?

    In 1876 Alexander Graham Bell was granted a patent for the invention of the telephone. If patents lasted life plus 95 years then the telephone would still be in patent protection.

    How is it fair that Gerry Rafferty, and you and your sucessors benefit for all that time, whereas Bell gets a mere 17 years?

  19. What I don’t get is why our right-leaning govt which is supposedly all over “economic prudence” seems to fail to do the most basic net-present-value analysis on copyright term extension.

    Comparing between 50 & 95 years, the increase in NPV on a newly created work is between 0.8% and 5%, assuming a CoF between 6%pa and 10%pa.

    On the other hand, the increase in cost to society is at least 90% (reasonable “cost of finance equivalent” estimates range from zero to substantially negative).

    If we can’t fight them from the moral high-ground, maybe we should take the “what’s sauce for the goose is sauce for the gander approach: let’s extend copyright to 200 years, and re-instate copyright on all the public domain work they originally ripped off to make the works they now want protected. (Exemption for any extant copies, but all new ones will be infringing.) And allow the crown to take action on behalf of orphan works.

    If they want to suck the life-blood from future creative generations, let’s give them a fire-hose and see how they like their own medicine.

    All terms to revert to 50 years in 2020.

  20. dbuckley says “What it is not supposed to be is a almost-never-ending right to profit from that work. The very idea of an individual copyright having a period based on the author’s death is almost abhorrent”

    So if I spend my lifetime building up all sort of things like a catering busniness, or a transport company, or a farm, or a factory, or simply retirement investments – my family is allowed to benefit from my lifetimes work.

    But if I am a writer, musician, photographer, artist etc – you think it is “abhorent” if my family receives any benefit from my lifetimes work after I die.

  21. Just further evidence of this Govt. pushing us toward the ‘New World Order’ aka : American/EU empire !

    I suggest we do everything possible to keep our feet in the south pacific & remain ‘Kiwis’

    Kia-ora

  22. I fail to see why copyright protection should extend to a period longer than patent protection.

    The idea of intellectual property protection is that it is supposed to strike a balance between giving the creator of an idea some return on their work done, and the public good.

    What it is not supposed to be is a almost-never-ending right to profit from that work. The very idea of an individual copyright having a period based on the author’s death is almost abhorrent; in what world is the idea that the estate of a creator should benefit from the creative’s work for (in effect) most of their lifetime a fair state of affairs? You could almost state that a pension should continue to be paid for x years after the death of the pensioner.

  23. The copyright term on Fourmyula’s Nature will not be available in 2020. It runs for 50 years after the death of the author, Wayne Mason, who is still very much alive. The TPP will extend the term for works of identifiable authors from 50 years to 70 years in New Zealand. On any measure that is still a significant increase.

    The increase in the term of non-identified (i.e. orphaned) works from 50 to 95 years is (as you say) unjustifiably extreme. It will essentially force us into line with the term limits enacted in the US Sonny Bono Copyright Term Extension Act (the ‘CTEA’).

    If you want to find some key policy positions opposing the act you might want to read the dissenting decisions in Eldred v Ashcroft. The CTEA is effectively a grant of perpetual copyright that undermines the public interest by imposing a state enforced monopoly on the public use and enjoyment of works of authorship. It is highly unlikely that any artist now living is going to be incentivised to produce more work simply because their great grandchildren are going to receive royalties.

    This should be seen for what it is; a naked imposition of expansionist US copyright law designed to lock in monopoly profits for a select group of corporations (publishers and producers) who possess most of the IP rights to property that ought, after a reasonable period of time, to be able to be enjoyed freely by all New Zealanders.

  24. The subject of copyright length always seems to come up whenever Mickey and the gang are about to enter the public domain. The irony is, Disney made its name, and substantial wealth, from works that were in the public domain – Snow White, Sleeping Beauty, etc – and now they wish to deny others similar opportunity.

    Extending copyright so egregiously, preventing the works that comprise our cultural heritage from entering the public domain, is just another example of the corporates stealing from the people.

  25. I think it has to be about balance photonz1, 95 years sounds like an awfully long time for Sony to hang on to a piece of music.

    And just imagine what a better director/writer could have done with the StarWars prequels if they could have prised it out of the hands of that neurotic weirdo!!

  26. Gareth – interesting that by saying copyright protection should finish sooner, you are effectively advocating that large corporations should be able to exploit the work of Kiwi artists, no matter how inapporpriate that exploitation is, and make as much money out if it as they can, and they shouldn’t have to pay a cent to the artist or even get their permission.

    You problem is that EVERY time you look at copyright, you only ever look at it from one narrow angle.

    And you mistakenly think your angle protects the small guy from the corporations, when what you advocate for will do the exact opposite and allow corporations to completely screw artists, writers, photographers, film makers, musicians etc.

  27. I have to ask, why are they so keen on extending the copyright to 70 to 95 years? Who really benefits?

    It was just so damned inconvenient of Walt Disney to die in 1966, it would be just so trerrible if all those winderful characters he created could be used by anyone to tell a story…

    It’s not like The Mouse has ever had copyright protection extended before to his benefit, has he. Oh wait, I forgot about CTEA.

  28. Are you quite sure about your description of the present period being 50 years after the work’s creation?
    I thought that applied only to computer generated works. for all human created works, including music, I understood it was 50 years AFTER THEIR DEATH.
    I have no idea who wrote the works you list but I would be willing to bet that some of the authors are still alive and therefore the 50 year period hasn’t even started.

  29. I strongly agree with this post.

    The exploitation of art by large corporate interests with the feigned ‘concern for the artist’ crap is just laughable.

    All this will do is further squash artistic innovation and culture and push us toward the carefully manicured ‘corporate’ art and culture that we are supposed to oh so enjoy.

    Certain modern music is a great example of the loss of genuine talent which has been replaced with clever marketing and weak tacky musicians that tow the corporate line.

  30. 40, 50, 60 years years? It should be 10 years. If they can’t profit from it, in that time, they probably never will.

    Ideally I would want it to be less than 10 years, but I can live with 10 years of copyright as a compromise.

    I have to ask, why are they so keen on extending the copyright to 70 to 95 years? Who really benefits?

    It’s not clear to me, that we as a society, benefit from long term copyrights, in the long or even short term.

  31. I cannot understand why our government seems to think we need a trade agreement with the economic equivalent of The Titanic. Presumably the secrecy is necessary to stop me from understanding it….

  32. This is an abuse of our rights. Copyright has never, and should never, be seen as a means to enforce monopoly against consumers. Copyright is an agreement between creatives and public, to balance both rights. Currently it’s being abused, predominantly by large corporates, who often fight to maintain control over the artist as well. I say it should fall into line with patent IP. 25 years. Or does Ray, who should have given up when his health went to custard, believe that his rights as an artist is worth more than the IP rights of a pharma company that helped treat his health concerns?

  33. I don’t see why we need any trade agreement with the USA in the first place the things we export a lot of such as meat and milk they want to put restrictions on to protect their own locally produced meat/milk anyway so in the end such agreements are unbalanced and New Zealand as a whole loses out by sacrificing sovereign/human rights for little pay off (and lets be honest our rights should not be for sale at any price)

    The USA has too much power over the world and is pushing for more in order to protect their own corporate interests and threatens countries that don’t go along with it with trade sanctions (wikileaks leaked cables showed they did this to Spain to force them to pass a new copyright law that was basically written by US law makers) if the rest of the world stood up to them and refused to trade with the US then they would lose the power to threaten other countries but instead there is this police of trying to appease the US at the expense of citizens it’s sickening and New Zealand should have no part of it yet we’re being used to push ACTA which has in the past 3 months been widely rejected amongst the EU due to the fact that ACTA may violate human rights

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