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Exception Creep

By March 29, 2016 No Comments

Kevin Chapman, Director of Upstart Press comments:

Last week I went to a lecture at Auckland University. It was given by a noted American lawyer and academic, Professor Kenneth Crews, and was ostensibly about copyright and library exceptions in NZ.

Copyright and the prospect of creep in the exceptions area should be a concern for every NZ author and publisher. The lecture started out like Copyright 101, and was designed for its audience. Apart from myself, Sam Elworthy, and Jackie Dennis from NZSA, the audience appeared to be largely librarians and academics, so a fertile ground for anti-copyright sentiment. And that is what Prof. Crews gave them. In a reasoned and mild-mannered way, pretty much every statement had an underlying message – “rights-holders are out to deny you access”. Every so often he would make a statement that seemed even-handed, such as talking about balance, but would then push back to his default position. Apparently balance is a difficult and problematic concept.

As well as minimising the value of copyright, Prof. Crews had another agenda. He said that he was not here to push a particular view, but he then delivered the hardest sell for “fair use” that I have seen so far in NZ. Fair use might well suit a litigious society like the U.S., but there is a reason why it has not been universally accepted. And he did not mention that of 188 members of the World Intellectual Property Organisation, only four have fair use.

However, in this room it appeared a panacea for all ills. When the questions began, the tilt really showed, and I couldn’t stop myself at one point. A questioner, in reference to the Marrakesh Treaty, asked why people would object to exceptions for the visually impaired. Prof. Crews gave a little riff on how movie companies argued that nobody but them should apply closed-captioning to their movies, and publishers said that they should be the ones who produced braille and daisy-wheel editions, but that they didn’t. I challenged him, pointing out that publisher objections had centered around lack of controls over who could make copies and distribute them. He accepted the point. So then I asked him if he had any comment on the PWC report that said that educational authors’ income and educational publishing had been decimated (common usage meaning, not the literal one) by education exceptions in Canada. He talked about academics not minding losing that income as they did it as part of their job.

I write this because this attack on authors and publishers livelihood is widespread, and insidious. This is a man who consults with WIPO, and met at least one minister during his visit here. The danger for the creative sector is “exception creep”, and each exception can seem harmless, especially when articulated by people who pretend to be author-friendly. All of us should be talking about this at every opportunity.