Monday, March 14, 2022

Copyright term extension violates the BORA

Last night I did a last-minute submission on the international treaty examination of the UK-NZ Free Trade Agreement, focusing on the issue of Labour's sneaky extension of the copyright term. After making the obvious points that this was not in our interests (the FTA's National Interest Analysis is pretty explicit on that) and that it was undemocratic to make this sort of change via an FTA, I noticed that the NIA said there was "[n]o effect on human rights in New Zealand". Which led to another point: extending the copyright term violates the BORA.

Copyright is a restriction on freedom of expression. Restricting the right to disseminate and distribute copyrighted works to their owners is clearly a limitation on the right to receive and impart information affirmed in section 14 of the BORA. It does this so that creators can make money and earn a living, thus incentivising the creation of further works.

As we've seen in the case of vaccine mandates, a limitation on a right may be justifiable if it is a "reasonable limi[t] prescribed by law as can be demonstrably justified in a free and democratic society". This means that it must serve an important public purpose, and be rationally connected to and proportionate to that purpose, and impair the right no more than is reasonably necessary for that purpose.

Incentivising the creation of cultural works is clearly an important public purpose, and a limited period of exclusivity is clearly rationally connected to that purpose. The question is one of proportionality: how long should that period of exclusivity be? There is obviously a range of possible answers here, depending on how the copyright term is structured, but the important thing to note here is that we are talking about a change. And it is clear that if a longer term would not result in a greater incentive for the creation of new works, then it is disproportionate. And on that point, we can just look at the NIA, which says explicitly:

there is no evidence that increasing the term of protection for copyright and related rights would incentivise either the creation of new copyright works or the dissemination of older works (which are the primary policy goals of copyright protection).
This is effectively an admission of disproportionality, and therefore of inconsistency with the BORA. Under the BORA, Parliament is the first guardian of our rights, in that it is supposed to scrutinise proposed legislation and not pass laws which are inconsistent with it. It needs to do its job here, and reject England's copyright extension. And if it doesn't, then this seems to be a prime case for a declaration of inconsistency in future.

Meanwhile, I'm wondering where the hell MFAT gets off on proposing a treaty which is inconsistent with our constitution (because that's what the BORA is: a key part of our constitution). The answer is probably that they just didn't think about it - FTA's are about money, not human rights. But its their job to think about it: the BORA imposes standing obligations on all branches of our government at all times. At the least, this means that it should not make agreements contrary to the BORA as a matter of public policy, but I would go further and argue that it does not have the legal power to make such agreements at all (basicly running the "contracts are subject to statutory obligations" line of Wyatt Co (NZ) Ltd v Queenstown-Lakes District Council, but on MFAT and the BORA, rather than on a local body and the OIA). Either way, MFAT appears to have overstepped here, and we need to know what safeguards they have to prevent them from doing so in future.