Copyright (New Technologies and Performers' Rights) Amendment Bill, First Reading
New Zealand Parliament, 13th December 2006

The Copyright (New Technologies and Performers’ Rights) Amendment Bill has been so long in the drafting that some of the more telling criticisms of it can be found in the ministry’s own early documents. In its 2002 position paper, for example, it states that it is the ministry’s view that it is not the role of the Act to protect access-control technology, which is used in some cases to price discriminate and control geographical distribution of works to the detriment of users. I absolutely agree. Our copyright law should not be used to help firms to price discriminate and to control where and how works that have been legally purchased can be used. This would be to the general detriment of users and it would stifle innovation and research.

Yet this is precisely what the current bill would do. It would turn this Parliament into a tool of corporate control by mimicking some of the least desirable features of prior American legislation on this topic.

To be fair, there are some good points. The bill tries to distinguish between personal use and commercial use of digital material, but with mixed results. It protects Internet service providers from being in breach of the Copyright Act as they conduct transient copying during the process of delivering web material, and it has also tried to come up with a workable notion of 'fair dealing' in copyright material. It tries to exempt sound recordings that have been ripped to an iPod or for playing in the family car. It also seeks to create another exemption that intends to legalise the use of multi-zone DVD players. These are welcome advances - or they would be, if they were unambiguous.

I acknowledge the comments of Chris Finlayson in his call for a comprehensive approach to the whole issue of what constitutes 'fair use'. If we take the issue of format shifting as an example, currently under the Copyright Act it is illegal to rip a CD that one has legally purchased on to one’s iPod, or to make a copy to play in the car. Under this bill it would be legal to take a CD that one has bought and make one copy for each of the replay devices that one owns. Yet, incredibly, this provision has been given a sunset clause. This exemption, which allows a person to format-shift the sound recordings that he or she has bought, will expire 2 years after the legislation has been passed, unless it is explicitly renewed by Order in Council. It seems to me to be a basic principle that once we have bought a CD, we should be allowed to decide how we use it in our own homes. How will this exemption work at all if a record company attaches non-copying technology to its CDs? Under this bill it would appear to be illegal to try to circumvent that technology and to try to enforce one’s legal rights in New Zealand. One of the concerns raised by the Privacy Commissioner around this very point was that such proposals may force New Zealanders to accept intrusions on their rights that may not be consistent with New Zealand law but would be illegal to circumvent.

In addition, why has the exception for copying purchased sound recordings for personal use not been extended to audiovisual works, as well - that is to say, to DVDs as well as CDs? People do format-shift both CDs and DVDs, and will increasingly do so - it is just a simple fact of the world we live in.

The line between personal use and commercial use also gets very blurry, very quickly. If personal use can be argued to have commercial implications - if one merely communicates information about the structure of encryption codes to others who then use them for commercial or criminal purposes - the chain of liability seems very unclear. Presumably, one cannot be held criminally liable for the end uses of digital information by others.

It is also unclear to me how, under this bill as it is drafted, one could carry out open source research, which can be said to be of personal use too but can have commercial applications. The entire open source movement, whose overwhelming strength and contribution to the entire evolution of the World Wide Web and the Internet has been based on its readiness to share how codes and formats work, could all be torpedoed by this legislation. We would be legislating against the new breed of web innovators.

Where, for instance, will interoperable competitive products fall on the spectrum as the bill attempts to strike a balance between copyrights and personal use? In one sense it is clearly of personal advantage to be able to develop one’s own product, but will that not entail cracking and disseminating the codes and formats of the units one wishes to interoperate with? But, as I have previously indicated, my most fundamental problem is the degree of protection that the bill offers to technical protection mechanisms. These anti-circumvention measures primarily put Parliament in the service of corporate profit-making. They give no discernible defences at all, that I can see, against malware or encrypted surveillance measures that corporates may well incorporate into digital works that they distribute.

Collectively, these measures will - and currently already do - work to stifle innovation and research. Let me be clear at this point that the bill, despite its name, is not actually about protecting the copyright of artists. Those artists’ right to a decent income from what they have created is not the driving motive of this bill. Nor will this bill stop piracy or counterfeiting. The US legislation that the bill mirrors has been invoked not against pirates but against consumers, scientists, and legitimate competitors. What this bill seeks to do is enshrine the rights of corporations over cultural and scientific property. Artists, with very few exceptions, will continue to receive a pittance for the fruits of their labours. After all, the bill is about the right of corporations to exploit consumers at every point in the delivery of digital material, and it seeks to make a criminal out of every citizen who tries to resist those corporations’ power to do so. As an example, corporations in the United States have already sued nearly 2,000 individuals who have engaged in the file sharing of music.

Just today we have been debating legislation to end Telecom New Zealand’s monopoly of access to the local loop—why on Earth would we want to create a new realm of legislation that enshrines monopoly access in the digital domain? The international verdict on this legislation is already in.

Cory Doctorow of Boing Boing, the world’s most widely read blog, has this to say: “New Zealand MP Judith Tizard has sponsored an amendment to New Zealand’s Copyright Act. The new copyright proposal mirrors the US Digital Millenium Copyright Act. This has been an unmitigated disaster in the United States. Not only has it totally failed to keep copyrighted works from being copied without permission but it has also created an anticompetitive marketplace where companies can sue their competitors for making compatible products.” For making compatible products! Not to mention, the devastating effects on user rights and the chilling effect on legitimate security research. “The US had an excuse,” Doctorow concludes, “when it passed the Digital Millenium Copyright Act in 1998: nobody had tried it before and seen how bad it was. But here we are, 8 years on, and what possible excuse can New Zealand have for adopting this failed US policy initiative? Why would one want to import another country’s disaster?” That is the question this Parliament has to ask itself.

In fact, as someone has already said about this bill, people can poison the river and get a slap on the wrist - or get a consent, as happened in Pareora just today, I think - but if they try to tamper with a multinational’s international property rights, then the book really gets thrown at them, to the tune of fines of up to $150,000 or 3 years in jail, in the case of that legislation. Why on earth do we want to introduce that kind of legislation here?

I will make one final comment around the exemptions for educational purposes. The point was made, in an email that came to me only today from Stephen Marshall, that the Copyright Licensing Limited v University of Auckland decision has made it abundantly clear that exceptions in relation to educational purposes must be interpreted as narrowly as possible.

In practical terms it is very hard to stay within the limitations of the Act. New Zealand institutions have discovered this to their cost. In effect, every institution must use licences to manage the risk. The bill’s regulatory impact statement acknowledges that obliquely by saying that it may be that some libraries and educational establishments will be prevented from making particular use of copyright material without a licence from the copyright owner, but that it is OK because it may already be covered by their licensing agreements.

This rosy view of the world of licensing ignores the experience of Australia, which is often an accurate predictor of New Zealand in this area. We have to remember that licensing for digital provision of materials is substantially more expensive than for paper-based materials—up to 10 times the fees for the same content on digital. Institutions are having to invest heavily in onerous tracking and notice provisions.

Local Electoral (Repeal of Race-based Representation) Amendment Bill, First Reading
Speech in Parliament, 22nd November 2006

I begin my speech by referring to this idea of race. Tony Ryall said the Local Electoral (Repeal of Race-Based Representation) Amendment Bill addresses raced-based legislation. I would like to point out to members of this House who often talk in those terms that “race” is an intellectually discredited term, and has been since the 1940s, when evolutionary scientists rejected it because race-based definitions are imprecise, arbitrary, have many exceptions, have many gradations, and the number of races observed depends on who is looking at them.

In fact, the very word “race” came out of European exploration of the world and was an adjunct to racism. In the face of the rejection of the concept of race by evolutionary scientists, social scientists have replaced the term “race” with the term “ethnicity”, which refers to self-identifying groups based on beliefs, shared religion, nationality, or descent.

An ethnic group is a population whose members identify with each other on the basis of a presumed common genealogy or ancestry, and it is usually united by common cultural, behavioural, linguistic, or religious practices. I say that because I am sick of hearing people talk about race when such a concept is an absolute fallacy. If members go to any university, they will hear that.

It is so frustrating to hear this constant rhetoric about race-based legislation when none of this legislation is about race at all, and it never has been. Legislation that supports Maori aspirations or representation is not about racism—in fact, it is the antithesis of it—in my view, it is about democracy. I object to this legislation because it cuts across democracy. The Bay of Plenty Regional Council (Maori Constituency Empowering) Bill was brought to this House by Mita Ririnui, on the request of the Bay of Plenty Regional Council. Who is Tony Ryall to try to repeal that Act?

I was on the Justice and Electoral Committee that heard from submitters who had advocated for years to get that legislation before the House. They got the support of the regional council, the legislation came here, we passed it, and now Tony Ryall thinks he has the right to turn around and spit in the face of all those people and this Parliament.

The Local Electoral Act provides the option to establish Maori wards and constituencies. That is a local decision. Again, who is Tony Ryall to prohibit that? He argues that no council has adopted that measure, but that just proves that this legislation is a cheap stunt. If no one has adopted it, what is the problem that he is trying to rectify? It is a cheap political stunt to bang on with the anti-Maori rhetoric that the National Party got their blip in the polls from. Frankly, most of us in this House are absolutely sick of it.

Speech on the Criminal Proceeds (Recovery) Bill
20 March 2007

And now for something completely different. As Simon Power said, this bill has been a long time coming. But unlike him, and it seems unlike most other members of the House, I do not celebrate its introduction. I had hopes that the Government, once Minister Goff had been moved aside, would have finally come to its senses on this draconian and outrageous legislation. but, no—it is the same shameful sham laid on the Table today as had been discussed in Government policy.

According to the “General policy statement” of the explanatory note, “This Bill seeks to make more effective provision for the confiscation of property that either represents the profits of criminal offending or was used to facilitate the commission of crime.” The statement notes that “The existing Proceeds of Crime Act 1991 provides for confiscation …” but that “The total amount confiscated under that Act has been relatively small.” It makes the point that “Other jurisdictions … have introduced legislation that enables criminal proceeds to be targeted without a conviction necessarily being obtained. These regimes are proving considerably more effective than previous laws in terms of the value of criminal proceeds confiscated.” That is interesting. It reminds me of the conversation I had at the Home Office in Britain, when discussing its criminal proceeds legislation on which this is so clearly based. Officials were boasting to me about how successful their regime was - it was wonderful; they had collected all this money. So I asked them what evidence they had that the legislation had impacted upon offending, at all. “Oh,”, they said, “we haven’t looked at that.” But they said it was successful as a piece of legislation because they had got millions and millions of pounds. If that is how we judge the success of criminal justice legislation in this House, then I think we really are barking up the wrong tree.

What does this bill do? It repeals the Proceeds of Crime Act and replaces it with a 'convictions-based forfeiture regime limited to instruments of crime … and a non-conviction-based confiscation regime to deal with all other property representing the proceeds of crime or assessed to be the value of a person’s unlawfully derived income'. The non-conviction-based regime … 'will operate completely independently of any criminal proceedings …', says the General Policy Statement. 'Consequently, the same person may be the subject of criminal prosecution (including potential forfeiture of instruments of crime) and confiscation action under the civil process.'

Well, that sounds a bit like double jeopardy to me. A person is being stung twice for the same offence under totally different regimes. But even worse than that is the fact that that person does not necessarily have to be the subject of both regimes, because he or she does not even have to be prosecuted. A person does not even have to be charged with a criminal offence for this stuff to apply. If people are charged and acquitted - that is, there is no conviction - it still applies. People can be acquitted of a crime and this stuff will still apply to them - they will have proceeds confiscated from them. Even worse, they can be convicted and have their convictions quashed on appeal, and this provision will still apply.

I remind members of the House that on appeal one is not starting de novo - to overturn a conviction on appeal there is a very high threshold to pass. But even if someone manages to quash his or her conviction on appeal, this forfeiture regime will still apply.

What does it do? OK, in a general sense, the explanatory note says that “Civil action will be able to target property that has been acquired as a result of unlawful activity, even though it may not be possible to prove beyond reasonable doubt that the owner has committed a specific criminal offence.” It enables two types of confiscation orders: “one for the forfeiture of property to a specified value that represents the profits of significant criminal activity; the other for forfeiture of a specific asset or assets derived directly or indirectly from … criminal activity. There is also provision for a restraining order to be made to preserve property while the Crown is gathering evidence …”.

I would like to touch on these things in a little bit more detail - first of all, on this restraining order. The basis for making a restraining order is that the authorities have reasonable grounds to believe that the specific property is tainted property, and they will freeze it, or that the person against whom the order is made has unlawfully benefited from significant criminal activity, which raises the question in my mind of whether we will target casinos. I think their proceeds are probably “lawful” proceeds of crime. Casinos are well-known to have the No. 1 money-laundering operation in this country. I received some information from the Problem Gambling Foundation, which claimed that about 45 percent of pathological gamblers had committed crimes solely for the purpose of financing their gambling. Of those, 28.3 percent had been convicted of a crime at least once, and 44.4 percent of youth with pathological gambling problems had admitted borrowing or stealing money to cover gambling debts. The most common offences were obtaining finance or credit by deception and cheque fraud, and the most common ways of disposing of proceeds were gambling and using proceeds for living expenses. The mean amount of actual loss was $218,000. So will we be seizing the assets of casinos? Well, I suspect not. Again, it reminds me of my discussions at the Home Office. What they were doing there was quite deliberately targeting people on housing estates, because they told me that it was important to send a symbolic message to criminals that crime does not pay - but to only the low-level ones. They were not going to touch the big fellows in their big country estates driving Jaguars. No, no - they would not touch them, because it was not important socially to send a message that big crime did not pay.

What we are doing with this bill is sending a signal that middling crime does not pay; if people want to have their crime pay, then they have to be one of the big boys. “In the case of a restraining order relating to an instrument of crime … the respondent must have been charged with a qualifying forfeiture offence … with which the instrument of crime is associated, or there must be reasonable grounds to believe that the person is about to be charged …”. Well, OK! “A court may make a restraining order subject to any conditions the court thinks fit ... . The court may allow … the following to be met out of the respondent’s restrained property …: reasonable living costs …: reasonable business expense …: the payment of any specified debt …:” and “any other expenses allowed by the court.” - but members should get this - “… the court may not allow legal expenses to be paid out of the restrained property ...”.

So if my assets have just been frozen—they are being restrained, and I cannot do anything with them, I cannot dispose of them - I am supposed to fund a major criminal defence. It is not even a criminal defence, I am supposed to fund a defence to this piece of trash. How am I supposed to do that if all of my assets have been frozen? The bill specifically states that the court must not allow legal expenses to be taken out. It is absolutely outrageous and I defy anyone in the Government to explain to me how that will allow for any kind of fair trial. I have not heard anyone talk about that yet. All we have heard is how wonderful it is that we are targeting criminals. We have not heard any argument about how the serious New Zealand Bill of Rights Act breaches will be rectified in this bill.

Damn, I am running out of time and I am just getting started! The bill refers to assets forfeiture orders confiscating specific property, that is, tainted property. Tainted property is defined as: “… any property that has, wholly, or in part, been— (i) acquired as a result of significant criminal activity;”. “Significant criminal activity” is one where there is a maximum term of imprisonment of 5 years or there is a purported value of property, proceeds , or benefits of over $30,000. A maximum of term of imprisonment of 5 years is given for crimes such as possessing forged bank notes, and a feigned marriage - that is a good one. A feigned marriage carries a maximum of 7 years. If, as a result of that feigned marriage, I paid one mortgage payment on my house that I had been buying for the last 30 years, suddenly it has partly been acquired as a result of criminal activity and the whole house is now forfeit on the basis of a feigned marriage. Is that really what we are trying to get here?

The other kind is a profit forfeiture order that deprives the respondent who has benefited from significant criminal activity of interest in a property that represents the value of that benefit and that goes back over a period of 7 years. Now $30,000 over 7 years is $82.52 per week. If I have been doing something—or have not been doing it but there is a reasonable belief that I have been doing it, that has given me $82.52 a week for the last 7 years, I can have my assets frozen and potentially taken on the basis of that order.

As I said, I am only just getting started and my time is up. There is a whole lot more in this legislation that is absolutely outrageous and I thoroughly recommend this House to bin this trash right now.