The Trans-Pacific Strategic Economic Partnership Agreement

This is the full text of my submission to the Ministry for Foreign Affairs and Trade regarding the proposed free trade agreement with the United States. Much of this draws from the precedent set by the Australia-United States agreement.

A free trade agreement with the United States is a huge and very significant opportunity for New Zealand, but this may not be a positive step forward in all ways. We must look very carefully at the compromises and expectations that New Zealand will be expected to fulfill through such an agreement. It would be an unfortunate step for New Zealand to be bullied into submission in areas where we have an opportunity to be world leading and present new ideas to the rest of the world.

One of the biggest issues many people have been discussing is the expectation that New Zealand will be expected to make various concessions relating to copyright and intellectual property. I posit that these concessions are retrograde, not keeping with the goals and spirit of free trade, and furthermore, will cause unneeded tension in the marketplace of the 21st century, which is characterized by a relentless environment of social and economic change. New creative uses of technology are evolving faster than legislation and past ideas about intellectual property can keep up with - I believe we must appreciate this fact, and guide our legislative decisions based on a broad understanding of current technological idioms and how they might influence future developments and changes.

While I agree with the broad principles of a free trade agreement, there are several specific aspects of the potential agreement which I profoundly disagree with.

Extending the minimum duration of copyright expiry from 50 to 70 years is an unneeded and arbitrary decision which does not take into account the emergence of a culture of remix and referential linking across the space of contemporary global media. At a time in New Zealand's development when many look to the past for new artistic inspiration, we will see classic works of art, literature, and music being locked away for an excessive amount of time, preventing the younger members of our society from connecting and re-contextualizing these significant past achievements. 70 years may be a reasonable approximation of a natural human lifespan, but this timescale has very little relationship to the rhythms of cultural change and artistic expression and transmission of ideas across different generations through different methods of technology.

However, a far more insidious and destructive specter that looms large is the mandatory enforcement of digital rights management (DRM). We can look at the Australia-United States Free Trade Agreement, for a precedent, and New Zealand is likely to be subject to the same demands.

Enshrining DRM technology in legislation is an extremely harmful idea, bordering on the fringes of lunacy and irrational obsequience to runaway and unruly corporate interests. Firstly, the particular DRM technologies in media products of the past few years have been demonstrated to fail to function effectively as planned across the entire spectrum of media where they have been deployed.

DRM leads to a significantly poorer experience for consumers and also adds an additional expense of compliance and complication for media producers.

The proven frustration of consumers towards DRM enabled media is likely to have the opposite consequence from what is intended - when this technology fails and wastes time and money, consumers will feel cheated and are thus more likely to resort to piracy to obtain copies of the media they seek.

The current way this technology is deployed does nothing to counter or address the stated aims of this legislative program, which is to stamp out organized networks producing counterfeit products. Targeting single products and individual consumers is completely at odds with the goal of preventing the spread of organized piracy and counterfeiting.

The aspects of the existing Australia-United States agreement dealing with intellectual property are a harbinger of a whole raft of harmful anti-competitive practices which prevent cross pollination and links between products and expansion and mutual benefit from sharing foundational technologies, which cannot be a positive thing for a small economy such as New Zealand's.

Far from protecting the fragile rights of authors and media creators, these proposed changes to intellectual property law are only beneficial to a small circle of monopolistic corporations, and will provide no positive benefits or stimulus to the New Zealand economy and society.

Copyright, as enshrined in 20th century legislation, is a product of a particular era of technology and artistic expression. Rather than blindly force these older ideas into our current world, we need to evolve and adapt our ideas about copyright and intellectual property so that they are functional and relevant to the new digital and networked information landscape of the present and potential future. New Zealand is already leading the way through various agencies and public services who have embraced the emerging ideas of the copyleft promoted by organizations such as Creative Commons. We should strive to achieve a thriving industry based on art, science, and media, where principles of openness and rich transmission of creative works is encouraged for the betterment of all content creators.

This is why I believe we must resist the push towards New Zealand adopting a clone of the United States rights management legislation which has already been shown to be unsuccessful and unpopular. We should not encumber ourselves with legal bindings that shackle our economy and have no direct benefit to New Zealand as a whole.