New Zealand: Hypocrisy at the heart of illegal file sharing

Last Updated: 21 October 2012

Mr Dotcom and copyright protection

New Zealand artists deserve consumer support as much as the East Timor coffee bean worker and the Philippine factory hand, argues Claire Deeks, senior associate at James & Wells Intellectual Property1 Lawyers

It's a funny old world. Many people today are willing to pay a little extra to buy "fair trade" coffee to ensure that the workers who harvest the beans receive a decent wage. Good for them.

These people are also prepared to fork out a bit more for clothing and shoes from manufacturers who certify the apparel does not come from a sweatshop. They're probably the same people who piled the pressure on Apple to examine working conditions at Foxconn in China. This is commendable behaviour.

So, why does this new generation of ethical consumers believe it's ok to take away an artist's right to his livelihood by illegally downloading pirated material?

There's a warped sense of morality at play here. People are prepared to pay more to support an overseas coffee bean harvester or factory worker but see no wrong in paying nothing for the work of educated, skilled and highly creative New Zealand filmmakers, actors and musicians.

The owner2 or creator of a piece of art, whether film, literature or music, deserves to be paid for their efforts just as much as any other worker. To believe anything else is just hypocrisy. Why is it wrong to exploit or 'rip off' someone in one part of the world or in one type of industry, but apparently OK to do so to others? The answer is that it's not - ripping off the East Timor coffee worker is wrong and so is taking the work of a creative New Zealander without paying for it.

Unfortunately these simple truths are being buried by in the media debate about copyright protection, not least of which being the rolling avalanche that is the Kim Dotcom PR machine. I see that in his latest foray into the world of rap, Mr Dotcom compares himself to Martin Luther King proclaiming that "the war for the internet has begun" while accusing governments that would seek to stop internet piracy of "killing innovation".

But this debate is not about internet access or governments fettering innovation or basic freedoms. It's about respecting an artist's right to be able to seek compensation for their creative achievements. It's about bringing down the likes of The Pirate Bay and Megaupload, sites that deny artists the income that leads to innovation. And of course it's about assisting with the launch and success of legitimate content based platforms such as Apple TV and Spotify.

Make no mistake, unauthorised downloads take away an artist's right to be rewarded for their creative capital - and that, according to the norms of Western civilization, is both morally and legally wrong.

It's not just the artists who are being hurt - illegal file sharing threatens the long-term economic viability of the New Zealand screen economy. Statistics New Zealand's 2011 Screen Industry Survey highlighted that over 2,500 television productions were made last year, generating $3 billion in revenues, of which $700 million came directly out of local production and post-production earnings. International productions developed in New Zealand also contributed some $387 million.

Another statistic, bearing in mind the modest growth in gross domestic product (GDP) since the recession ended: The film and television sector's direct economic impact was 1.4% of GDP in 2008.

New Zealand is working to establish a high wage, knowledge based economy, yet we still entertain the concept that in a digital economy it's somehow justifiable to remove an artist's rights in a sector delivering on that aspiration. There is a significant amount at stake for New Zealand and arguments that illegal file sharing has no bearing on local screen production or the local music industry are, on close examination, baseless.

I believe that the ability to create, innovate and generate the best artistic, technological and knowledge-based competitive advantage will be essential to New Zealand's future prosperity. Credibly and successfully defending the intellectual property underpinning that competitive advantage is one of the key initiatives that will determine our economic growth and competitiveness in the 21st Century.

The success of creative industries like film and television relies on the effective enforcement of copyright against infringing file sharers, who are enabled by people like Kim Dotcom and his website, Megaupload.

Unauthorised file-sharing is not a "victimless crime". There are tens of thousands of individuals in New Zealand: actors, writers, directors, producers, artists, musicians, authors, and all those people who work with and for such people. These are people whose work inspire and instil a sense of cultural identity in all New Zealanders, and create content that drive hundreds of kiwi businesses and provide employment for thousands.

Can Kim Dotcom and his colleagues say the same?

Finally, in recognising the need to address creative rights in the digital economy, I must acknowledge that there is a legitimate issue raised in respect of available content in this country: that is, while significant steps forward have been made with respect to music content, New Zealand continues to suffer from a lack of options for viewing of film and television content online, compared to many other countries.

However, while frustrating, this issue cannot justify taking without paying. When the likes of Quickflix and others can truly deliver the content Kiwis so want to watch, will a level playing field emerge between the interests of protecting our screen production industry and the interest of consumers?


1Refers to the ownership of an intangible thing - the innovative idea behind a new technology, product, process, design or plant variety, and other intangibles such as trade secrets, goodwill and reputation, and trade marks. Although intangible, the law recognises intellectual property as a form of property which can be sold, licensed, damaged or trespassed upon. Intellectual property encompasses patents, designs, trade marks and copyright.
2A legal term to describe a person entitled to make an application for a patent. In New Zealand this includes any person claiming to be the true and first inventor, the assignee of the inventor, or the legal representative of a deceased inventor or his/her assignee.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

James & Wells Intellectual Property, three time winner of the New Zealand Intellectual Property Laws Award and first IP firm in the world to achieve CEMARS® certification.

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