Copyright (Infringing File Sharing) Amendment Bill

KATRINA SHANKS (National) Link to this

It is my pleasure to take another call tonight and continue this debate on the Copyright (Infringing File Sharing) Amendment Bill at the Committee stage. When I spoke earlier I said this was a difficult—oh, our officials have joined us. I acknowledge them for the hard work they put into this bill, for the patience and perseverance they had with some of the Commerce Committee members in coming to terms with what file sharing is, and for the displays and the enthusiasm they showed in trying to get us to understand how when someone file shares they can get lots of little bits from everyone else’s computers, pull it all together, and that is the file that is shared. It takes a bit for someone who was not brought up in the generation of file sharing to understand it. Even though I had a computer in the first job I had, so I have always worked with computers, technology changes. It shows just how fast people are left behind. My children would love to hear me say that. I always tell them I know exactly what they are doing all the time, and that I am like Big Brother and they cannot do anything I do not know about. In fact they can do a lot I do not know about, and what scares me is what I do not know. It is until we have legislation like this in front of us that we actually become aware of how fast technology moves and how fast we can get left behind.

In earlier debate I talked heavily about the Internet service provider warning notices and how the committee had a big debate on that and the provision to terminate or suspend someone’s account with an Internet service provider, an Internet service provider like Telecom or XTRA, if they broke the law and did some file sharing. I do not think people can accidentally file share—that is the thing. If people are going to file share, they have to have the file-sharing programs. They cannot accidentally share someone else’s files unless they have the software on their computer. To do that, they have to have made a decision as to the type of system they themselves will use to obtain files. I do not think people understand it is illegal to file share. If people do it, they are undermining the musicians, the artists, and everybody else, because they are not legally paying for the file they are receiving.

It is interesting how software develops over time as well. It is so common, and I had no idea that the software was so common. I did a little search on Google on Jonathan Young’s iPad beside me. In fact, that is technology in itself. We had a good talk about the use of wireless locations, especially down at the Wellington waterfront where there is free wireless Internet. If someone has a laptop down there, a free wireless connection is available. Someone could be using third-generation technology, for example—well, third-generation is not quite right, but someone could be using the wireless connection down there and could be logged on to someone else’s system. If that person shared some files illegally, who is liable for that? Technology is moving so fast, and now people joke with me that I do not have an iPad but just a little old laptop that takes about 20 minutes to open. When I am still waiting to log on, the guys beside me have instant emails on their iPads, and they say: “What’s that old thing you’ve got there—that old big box?”. Of course, it is a laptop that normally takes 20 minutes to log on. They have done all their work and have gone.

Technology has changed, and it is hard to make legislation that does not age fast, but stays current. That is why I am a big advocate of principle-based legislation, where technology may change but the principle stays the same in respect of what the legislation is trying to achieve. It was really interesting to talk about what youth are doing, how we can educate them on what they can and cannot do with their computers, what the most effective way to do that is, and the campaigns we can run. How many users are aware that what they are doing is right or wrong? It is really hard to be heavy-handed to begin with and to say we will terminate or suspend an Internet connection on a first offence or a second offence, when users have to learn what they can and cannot do, and what their boundaries are. So what do I and other parents do in Ōhāriu, which has one of the highest levels of Internet use in the country? What do we do when a parent has a child who is file sharing and that parent, like me, is not quite aware of what file sharing is, and then all of a sudden that parent’s Internet connection might get suspended? Well, that is really good! So that parent will talk to the child and try to educate them, but then the child may try to sneak something past the parent a second time—

CLARE CURRAN (Labour—Dunedin South) Link to this

I would like to take this call as one of a number, I hope, in the Committee stage of the Copyright (Infringing File Sharing) Amendment Bill. There are many things to talk about, so I will start with trying to get to the heart of the issue as I see it for Labour, which is the suspension issue and whether people’s Internet accounts should ever be terminated. That is something that Labour feels very strongly against. We are supporting this bill because we have reached a compromise where, although termination remains in the bill, it will not be enacted unless it is enacted by an Order in Council.

Before I talk about that, I will just put it clearly on the record that Labour absolutely supports our local artists, musicians, and creative industries, whose successes have shaped New Zealand and the very face of New Zealand inside our country and internationally. It is really important to put that on the record, because a number of speakers have mentioned the importance of our creative industries. But I will also put on the record that it is important to support them not only in words but also in deeds. That means supporting our public media, our public broadcasting, and our public creative industries. Unfortunately, we are not going in that direction in this country at the moment; we are going in the other direction by making cuts to them. The cut to TVNZ 7 is probably one of the most significant cuts in terms of funding for a new digital channel in our new digital environment. That is where we should be putting our investment, but unfortunately we are not.

I will read to members from one of the submissions brought before the Commerce Committee. Before I do so, I acknowledge the extraordinarily committed, dedicated, and intelligent hard work done by the officials during the debate. There was an awful lot of debate in the select committee. Some new, cutting-edge issues were discussed. Although some of the members around the table had a bit more of an idea than others about what was being talked about at times, the officials were very patient. I acknowledge the work they did by coming back over and over again with more analysis and more definition around some of the issues.

I will give members a picture on the issue of file sharing. I will be honest; one of my colleagues came to me recently and said she wanted to get access to a piece of music—her favourite song. She has loved the song for years and cannot buy it anywhere. She does not know where to find it. She had tried everywhere. It is not on Amazon and she cannot get it in a shop. She does not know how to get the song. She asked me what she should do. I asked her whether she had been on the Internet and looked for the song. She said she had, but that all these file-sharing sites kept coming up. I said I would ask for some advice. The advice that came back to me was that because the song is not sold anywhere any more—it is not available in any shop—the only way to get it is to go to one of the BitTorrent sites and download it illegally. My colleague would not, and did not, do that, but that gives us an idea of why so many people are file sharing. They are downloading content illegally in an environment where they cannot get access to material because either it is not available in any other form or it is not available in their jurisdiction because the material has not been released. That is unacceptable and it demonstrates flawed business models across the industry that are not responding to consumer demand.

I asked of every submitter who came before the select committee who represented a rights holder whether they had a business model in train to enable people to file share legally, and the answer was no. Essentially, that is a failure of the market and it is the reason why we are looking at this legislation today. The bill is putting in place a regime to, hopefully, educate people to cease the file-sharing activities that are being talked about—70 million items are being downloaded illegally. The only problem is that the alternatives are not great. That is one of the core issues.

I will read to you from the submission—

PESETA SAM LOTU-IIGA (National—Maungakiekie) Link to this

Thank you, Mr Chairman. While you are in the chair, Mr Robertson, I congratulate you on your promotion to Assistant Speaker.

It is a real privilege to speak on the Copyright (Infringing File Sharing) Amendment Bill. I acknowledge, like my colleagues have done, the officials and the work they put in on the bill. The bill has been difficult in terms of balancing the competing interests. The stakeholders were quite passionate, shall we say, about their respective views and opinions.

The bill is about balancing the rights of property rights holders—and they are intellectual property rights—with, as many speakers have already pointed out this evening, the developing and changing technologies that are inherent in this technological age, particularly around the use of the Internet. The bill is about protection of property rights. Although intellectual property rights are not tangible and cannot be held in one’s hands, some submitters compared them with those of owners of private property, of landowners, of people who have private property rights that we clearly understand.

In trying to protect these property rights we must understand that investment, research and development, resources, time, and energy have been put into developing them. In particular, the creative industries put in a lot of time and resources, and a huge amount of risk is involved. There is a risk in terms of putting moneys up front, developing a product, a service or a technology, then seeing how that product is taken up by the market. If that product cannot be fully capitalised on in terms of its return, then questions arise. That was the original intent of the legislation in 1994: to protect intellectual property rights holders, particularly those in the creative industries, and to balance that against the developing technology. If we are going to have thriving creative industries, we must have laws that not only protect those rights but make them enforceable in a court of law or, certainly, in a tribunal situation.

The argument put forward by the creative industries was that suspension is vital as the ultimate sanction. One of the submissions talked about a number of high-volume online infringements by individuals. In such cases a three-strikes graduated response would, in effect, be useless, superfluous, and redundant. That submission was put forward in terms of why suspension should be the final sanction. In many reported cases infringements have been made by not just individuals but groups of individuals who have abused the file-sharing technologies that are out there.

So that is on the one hand; on the other hand we heard from a number of Internet service providers. This point has not been raised this evening, but they talked about the costs that would be imposed on Internet service providers in implementing this regime. It would involve millions of dollars. We heard from a number of Internet service providers, and, when questioned, they went back to their respective organisations and made an attempt to quantify the cost of implementation. They came back and the figures were quite startling. The figures were in the millions. That put us as a committee on notice that the compliance costs of this regime, which no one has mentioned as yet tonight, are serious. A critical part of the consideration is that we do not over-regulate, or the regime may be counter-productive to, certainly, our economy.

One of the other reasons that suspension was advocated was that the option of termination would penalise not just a single user, the transgressor of the copyright, but also other users who are part of the network. For example, where a teenager was the transgressor and the account was terminated, that might affect not only that teenager but that person’s mother, father, siblings, and other whānau or family members who are reliant on that account. Also, the issue of suspension was seen as not just one of deterrence; that regime would educate those who were transgressing against the legislation. A notice regime was important in order to send a message, a deliberate message if you like, to those who had infringed to educate them that they were, in fact, breaking the law. I think that was an important part of the consideration of the Commerce Committee.

I think the majority of us came to recommend the new section 122PA, in clause 7, which, in effect, brings together a workable compromise on this issue. The bill’s provisions allowing for Internet suspension are retained, and would come about only if evidence indicated that notices alone were not having the desired effect. In this instance, the suspension provisions would be brought about by an Order in Council. I think that is a fair and reasonable compromise in terms of the dilemma we found ourselves in, because the competing interests, which were laid out by the various stakeholders in quite a passionate way, were quite compelling—on both sides.

I think we need more evidence to make a more informed and more reliable decision as to whether suspension is, in fact, to be implemented. I think my colleagues feel, and certainly I hear from members opposite, that that is a fair and reasonable solution. Certainly, stakeholders of the industry will need to monitor it and cooperate with the officials at the ministry. I am sure that when the review date comes in the future we will have the evidence to suggest whether such a policy should be implemented. Thank you.

Hon DAVID PARKER (Labour) Link to this

I ask the Minister in the chair, the Minister for the Environment, what impact the negotiations in the Trans-Pacific Partnership agreement will have on the Copyright (Infringing File Sharing) Amendment Bill. The reason I raise the issue is that I have before me an article by Brian Fallow from the New Zealand Herald on 31 March. In it he starts with what we all know: “A balance has to be struck between on the one hand fostering innovation and creativity, by protecting the fruits of such labours, and on the other stifling progress,”—and actually causing cost, I would say—“by making it too difficult and costly to access and build on the discoveries of others.” That impacts partly on patents, but also has implications in respect of copyright.

I am one who firmly believes we need to protect the creative endeavours of the people who go to the effort to make creative content. Whether it is a new design, a piece of music, a piece of art, or literary works in the form of poetry or a book, the people who put in the effort should be able to protect that content and control its use in the future to a reasonable extent. The provisions in the bill relating to section 92 are predicated on current assumptions about the length of copyright. That section applies only if something is copyright. If it is not copyright, then copying it via the Internet or any other means does not infringe anyone else’s copyright. No property right is being infringed. Therefore, the length of the term of the copyright is fundamental to how this legislation works in practice.

According to Brian Fallow, the leaked text from the US negotiators in the Trans-Pacific Partnership includes this ambition on the part of the US: “The US also seeks to extend the term of copyright from the life of the author plus 50 years to life plus 70 years.” There are economic consequences of this change. Mr Fallow quotes a recent study by the Australian Productivity Commission, which said conceding that change would cost Australia between A$70 million—NZ$95 million—and A$240 million. The consequences of the Government changing the underlying rules relating to the length of copyright, if the Government were to buckle in negotiations with the US, are very substantial.

Although I agree that we should protect the fruits of endeavour for people who make creative content, I think there should be an end to the life of that protection. In the end, valuable copyright material ends up in the hands of corporates more often than not, if we are honest. Mickey Mouse and Donald Duck are not owned by the original people who drew the cartoons; some corporations will have purchased them from somebody else. The corporate interest that we create in copyright—which actually confers monopoly rights on the holder of those rights; they are monopoly rights—needs to be limited as to term, and that term should not be excessive. I for one think that even life plus 50 years is already a bit long. That is my personal viewpoint, but I am not advocating a change to it. I think that life plus 70 years would be too long, and I want to hear from the Government and the Minister in the chair that they are not going to concede that change.

The next point they make in the article is that the very vexed issue in respect of section 92A, which is under debate here, will, if the Americans get their way in these trade negotiations, be up for grabs again. I am quoting again: “Rick Shera, IP partner with the Auckland law firm Lowndes Jordan, said the draft text reopend the vexed issue of the role of internet service providers in policing intellectual property rights. As ISPs are the conduits for infringing material, the film and music industries have targeted them around the world as the best place to throttle it. ‘We thought we had almost got to the end of it with the Copyright (Infringing File Sharing) Amendment Bill due to be passed in the next couple of months,’ Shera said. ‘Imagine you are an ISP who has had to bear the cost of gearing up for that regime, only to be told that it is groundhog day and we are all going back to the section 92A debacle.’ ”

I think it is an appropriate request for the Minister in the chair to give some undertaking to the Committee that we are not wasting our time on passing this bill, only to have the legislation effectively undermined and the issue reopened by the negotiations under the Trans-Pacific Partnership.

Hon Dr NICK SMITH (Minister for the Environment) Link to this

Firstly, I compliment the members who have contributed to this debate. It is a pretty tricky balance between the copyrights that the National Party holds dear—and people who create items that have value, such as music, film, and the like, being able to secure value from those creative endeavours—and another pretty important right, the right of freedom. The National Party was founded on some very basic principles about freedom of expression, and the State being limited in the degree to which it can constrain freedom of expression and the general freedoms that we enjoy as New Zealand citizens. I want to put on record, though, the chequered history around this issue, and I note some of the contributions that have been made by Labour members.

I do not proclaim to be an expert on copyright law. I commend the job that the Minister of Commerce, Simon Power, has done in this area. Like so many members of this House, I have had to become familiar with this issue because of the huge furore created by the passage of section 92A of the Copyright Act. Anyone who was in an electorate office, who looked at an MP’s mail, or who was at the Nelson market has heard of section 92A. The first time I heard of section 92A I was not too sure which legislation it was in, but literally thousands and thousands of people were agitated by the bill passed by a previous Government in 2008. It got us into this pickle, and Simon Power and this Government have had to work through this issue in a balanced and sensible way. I think the provisions in this bill, and in particular the very constructive work done by the Commerce Committee, get us to a very sensible balance between those competing rights.

I will respond to a couple of specific points in the debate. Clare Curran brought TVNZ 7 and the creative industries into the debate. I have to tell members that in so many areas the previous Government left financial landmines that have gone off for this Government. In respect of TVNZ 7, the previous Government funded it for a limited period and said that it would become self-sustaining. Whether the issue is in relation to the work that Simon Power has been doing today in legal aid, the mess in ACC that I was left with, or some of the other problems that so many of my ministerial colleagues are dealing with—including the area health boards and the huge deficits there—it shows that the previous Government was financially reckless. It set up programmes that are unaffordable in these tight fiscal times.

I challenge the Labour members who are interjecting. I have a simple question for them: do they commit to funding TVNZ 7? On the one hand they cry in protest that this Government, with all the challenges of the Christchurch earthquake and the global recession, has to make difficult decisions. We had an impassioned plea from Clare Curran that the decisions we have made about TVNZ 7 were absolutely awful and that we should fund it. I simply ask Clare Curran this question again: will Labour fund it? Oh! The silence is deafening. We have a Labour Opposition that is playing politics and is not prepared to commit its opinion to say it would fund it. It truly shows how hollow Clare Curran’s criticisms are.

I shall come to the thoughtful question from David Parker in respect of the issues around copyright and the Trans-Pacific Partnership discussions. The first point I make about the discussions is that—

GARETH HUGHES (Green) Link to this

Kia ora. I would like to take a few calls but I am not sure whether my voice will last long enough. I am not sure whether members are aware that a parallel debate is happening right now on the Internet, on Twitter. The debate has already gone to The Pirate Bay, where people are using peer-to-peer software to move this debate around.

In a Senator Ted Stevens moment—Senator Stevens was the guy who famously said the Internet was “a series of tubes”—Jonathan Young has now been immortalised as the creator of a meme, with his fantastic comment that the Internet is like Skynet from The Terminator. Already Tweets and pictures with that meme have gone around. That shows the power of the Internet and how fast it moves. The debate online has already moved much, much faster than the debate in the Chamber.

I will make a couple of comments on Part 1 of the Copyright (Infringing File Sharing) Amendment Bill. I will start with clause 5, which repeals section 92A of the Copyright Act. I have heard members from both National and Labour blaming each other for the mess that the last Parliament got itself into with the deplorable bill that introduced section 92A, the Copyright (New Technologies) Amendment Bill. I heard Labour members blaming National members for voting for the bill, and National members blaming Labour members for bringing it in. In fact, both parties are responsible for that bill, and only the Green Party members can stand here and say we did not vote for a single reading of it. I would like to see a bit more responsibility taken from members in both parties for legislative actions in this Parliament.

I thank the officials in the corner; they did fantastic work. Unfortunately, I could not find the gigantic flowchart they prepared for us to try to explain the Copyright (Infringing File Sharing) Amendment Bill. I say to them: “Kia ora. Thank you very much.”

I heard from Miss Street that when it comes to Internet account suspension there is no evidence. I heard from an honourable member that no compelling arguments were presented by the advocates for account suspension. I do not get why we are putting the provision into the bill when both sides agree there is not the evidence to back it up and there are no compelling arguments for it. Everyone in this Chamber agrees that education is the key. We all agree on fines and notices, yet we had to go one step further and write this deplorable account suspension provision into the bill. That is why I have introduced an amendment to take the deplorable series of clauses from 122O through to 122PA out of the bill. Frankly, account suspension provisions should not be in legislation.

We have heard some good arguments from Labour members on why account suspension is bad, but I have heard in the debate this evening two different things. From members on the left side of the Chamber I have heard that they have a guarantee from the Minister in charge of the bill, the Hon Simon Power, that accounts will not be suspended. Yet from members on the right side of the Chamber I have heard that if suspension is appropriate, it will happen. There is a disjunction between the comments of the two parties, and I would like to flesh out the facts. The compromise is being presented as a great common-sense solution. I want to get the facts on the table and find out exactly what is happening with these clauses.

The fact is that an account suspension provision is still in the legislation. I am sure Labour members’ intentions are good, but the fact is that their perspectives on the negotiations are solely their perspectives and not necessarily those of reality. National had the numbers, so maybe it just called Labour’s bluff. I am sure Labour members are all crack negotiators and well skilled in negotiations, but what if they had stayed strong to their principles? What if they had gone to the Minister and, based on their principles, said: “No way. We are going to fight it with all of our breath. We are going to run another section 92A campaign and get rid of this deplorable legislation.”? What if? We will never know, because we are hearing only one side of the negotiations.

Minister Power has a track record of building cross-party support for his legislation in Parliament. I am sure that would have been an incentive to bring together robust legislation that did not have this deplorable clause allowing accounts to be terminated. The fact is that I admire and acknowledge the intent of Labour members, but I just do not trust the Government when it comes to the bill and its provision to enact account suspension through an Order in Council. I do not know why Labour members trust the Government. Labour members do not trust the Government on GST, tax, and workers’ rights. Why all of a sudden would Labour members start trusting the Government on digital copyright issues? It is just amazing.

The Green Party was not involved in any of the out-of-select-committee negotiations, so we do not know what was discussed. I ask the members on both sides of the Chamber what was negotiated. Is there a piece of paper? What was the deal? None of that information has come out, yet Labour members are telling the New Zealand public to trust them, that they are crack negotiators, and that they have struck a great deal with the Government to make sure that account suspension never comes into force. Yet National members are saying that the Government will bring it in if it is appropriate. Where is the deal? Will anybody table the deal? Is it on paper? What is the threshold for account suspension to be brought in? Will there be any public consultation when the provision is enacted by an Order in Council? None of those questions is being answered, and the public have a right to know why.

In the absence of the information being out in the public I urge parties to support my amendment to take the termination provision out of the bill. The provision can come back to Parliament, because that is where it rightfully should be decided on, not by a Minister through an Order in Council. The decision should be made in Parliament.

We are making a big call tonight on the State’s power to come in and turn off people’s Internet account for a civil offence—not even for a criminal offence. Essentially, the legislation has a disproportionate remedy. It will not stop the pirating of copyright material and it takes away what I believe is a basic human right to the Internet.

The Hon Mr Parker raised an interesting point about the Trans-Pacific Partnership. Was the partnership discussed in the deal? Is the termination provision in the legislation a reserve in case we need to enact it under the Trans-Pacific Partnership? Why is the provision in there? If the Minister cares to take another call, I would like to know what his threshold will be to enact the provision. Will the Minister guarantee that the provision will not be enacted in this term of Parliament?

In summary, we all acknowledge that the bill is a step in the right direction after the old failure of section 92A, but the Green Party cannot vote for the bill with a clause on account suspension written into it, even if it is not to be enacted. Kia ora.

Hon DAVID PARKER (Labour) Link to this

I will respond to a couple of the points the Hon Dr Nick Smith made, and also reinforce some of the issues I raised that he did not address.

The first is that he hurled across the Chamber what he thought was an insult. He said we on this side of the Chamber should be ashamed of ourselves for being in favour of union movements. That is not something we hide; we are actually called the Labour Party. If ever people wanted evidence as to why unions are necessary to maintain and improve the rights of low and middle income workers they have only to see what the Government did this year with the minimum wage. The minimum wage went up by 25c a week in the face of all these huge increases in the cost of living. People cannot rely on the Government to get a wage increase; they have to organise their own rights to have a bit of countervailing power in their negotiations with employers in order to earn enough money to live.

The other issue I raised and put to the Minister in the chair was whether National would extend the monopoly rights conferred through copyright, pursuant to the Trans-Pacific Partnership negotiations. We all know that National has an abysmal record in terms of controlling monopoly excess. One example it should really be ashamed of at the moment is its failure to strip out some of the billions of dollars of excess pricing we have in electricity, as found by the Commerce Commission in its 2009 report—$4.8 billion of overcharging. Dr Smith will get to his feet and say we did nothing about it while in Government, but that is wrong. We regulated prices and lines, and we set up the Commerce Commission inquiry that reported just after we left Government and proved the $4.8 billion—or 18 percent per annum average—overcharge by the State-owned energy companies, which National will now sell, entrenching that price gouging and making it even worse.

That is why, on the basis of that history, it is right for me to come to this Chamber and inquire whether what National will do with monopoly rights in respect of copyright will be another example of plundering at the expense of consumers, as it favours the interests of the copyright-holder.

I have already said that I agree with copyright. I think we should protect copyright for creative content.

MELISSA LEE (National) Link to this

I will not go there, in terms of responding to what Mr Parker was talking about, because I think he is simply anti-American.

Before I get on with my speech, I thank the officials who are here in the Chamber. As previous speakers have mentioned, the officials have put up with a lot of our ignorance about what is happening out there. Some of us have talked about the generational differences and the fact that we were not getting to grips with how file sharing was happening. The problem is not about just file sharing—it is not like sharing a copy of a DVD. It is actually the unauthorised sharing of copyright material via the Internet.

Clare Curran said unauthorised file-sharing was happening on the Internet because some material was not available on the Internet or anywhere. She gave an example of a colleague who wanted to get a copy of a piece of music that was not available anywhere, and she suggested that the only place her colleague could possibly go was to one of the Torrent websites. She qualified that statement by saying that her colleague did not go there. I hope she did not mean to say what she insinuated. To say that just because something is unavailable and someone does not have it, that person could do an unauthorised activity and ignore the right of the copyright-holder, is totally like saying that if someone does not have the money, and has no ability to earn it, they have the right to go and steal it off somebody else. That is pretty much a similar thing. Breaking a law, whether it is an assault on a person or an assault on copyright, should be punished, not excused.

During the Commerce Committee’s consideration we heard many submitters from both sides of the argument. I want share some data that, I think, came from the Motion Picture Association. When we look at the monthly infringement rates per country in 2009, we see that we did pretty well. We are down here on the graph I am holding, at third to last. When we look at the breakdown of the monthly infringement rates per capita, we see that we are way up there, behind only Australia.

What is really interesting about the data is that on both of the graphs Korea is last. I am not just trying to plug Korea because I was born there. It is really interesting that Korea has the most Draconian law when it comes to Internet and online infringement. It was the first country that—

MOANA MACKEY (Labour) Link to this

I was not sure I would take a call in this debate, but I thought that was an extraordinary contribution from the member who just resumed her seat, Melissa Lee. It highlights the lack of any kind of plan from this National Government.

The example my colleague Clare Curran gave went to the nub of the problem. We are making these changes because we want to support New Zealand artists and to support their copyright rights. We want to make sure they are not losing enormous amounts of money, and to make sure they are not prevented from continuing to do what they want to do because of people illegally downloading and obtaining their information. That is what we want to do, and that has to be the end goal.

Melissa Lee said that the Labour Party was saying it was OK for someone to download illegally, and that that was like committing assault, but that was not what Clare Curran said. Clare Curran said that if people cannot find online something they desperately want to purchase legally, they may eventually go to a file-sharing website because they were not able to find it anywhere else. A solution would be to work out as many ways as possible to allow people to find this information and these products legally. It is about prevention.

The National Government’s approach to law and order is all about passing at the tail end ridiculous legislation such as the three-strikes legislation, which will do absolutely nothing to prevent crime. It does all those things at the tail end of the spectrum, after an offence has happened, and they do nothing to keep people safer, at all. National rubbishes all the great work that the Labour Government did in trying to prevent crime through early intervention. It rubbishes it, calling it PC and namby-pamby, and loads up ridiculous laws such as the three-strikes legislation at the ambulance-at-the-bottom-of-the-cliff end of the spectrum. Melissa Lee was suggesting we do that in this area, as well. Labour members are saying we want to make sure people can access things legally. That will be the way that we solve this problem—as well as having a penalty at the end. But to say that the penalty at the end will solve the entire problem is not being realistic.

I pay tribute to my colleague Clare Curran. This has been a very difficult issue. It has been ongoing. As the Minister in the chair, the Minister for the Environment, has said, a number of us have received numerous correspondence through our offices on this issue. It is an issue that strikes to the very heart of the freedom that New Zealanders feel they should have when they are accessing the Internet. We need to determine whether the punishment fits the crime, and try to balance it with the need to protect New Zealand artists and their work and ensure they are not losing their livelihoods. It is a very difficult balance to get. I congratulate Clare Curran on the work she did in trying to find a compromise and trying to find a safeguard. It is not perfect by any means—not perfect at all—but it is a compromise and it is a safeguard.

Labour members did not have to do that. We are in Opposition. The Government had the numbers to push through the original law as it was. We could have just railed against it, shouted into the wind, and said how terrible it all is, but we wanted to be constructive in this area. We wanted to find a solution that works and also protects the rights of New Zealanders, so that they do not feel they have a kind of Big Brother, over-the-top Government approach coming down on top of them. It has not been easy, but that is what a responsible Opposition does. That is what a responsible Opposition has done in this case. As we said, the solution is not entirely perfect. If we were in Government we would probably do it differently, having learnt from our experience when we were in Government. But “compromise” is not a dirty word, and the compromise in this respect and in this regard is far better than what would have gone through had Clare Curran, as our spokesperson on communications and information technology, not put in that work to try to find something that would allay the concerns of all those people out there who were contacting us before the last election and post the election about the excessive nature of that particular penalty under the law.

I was disappointed that the Minister in the chair chose to attack my colleague David Parker in the way that he did. I think the issues that David Parker was raising were actually very sensible.

Hon Dr NICK SMITH (Minister for the Environment) Link to this

I want to respond to a few of the points that have been raised by members to add to the debate we are having this evening. The first of those I want to respond to is from the Green Party and Gareth Hughes. There is a fundamental problem for Green Party members: they do not understand that rights go with responsibility. It does not matter what area of endeavour it is in. With this area of the Internet, the Greens are very strong on rights but very light on responsibilities. I have a question for the Green Party. In our law governing our transport system, we have a right for people to drive a car. But also we have in our law the responsibility that goes with that right. The ultimate sanction for the courts is to take someone’s driver’s licence from them and to prohibit that person from driving for the broader public good. Frankly, our road transport system, which requires order, would not operate without that sanction.

We could look to another sector, such as telephones. The member rightly says that telephones are historically a basic right. Telephones have become a pretty essential part of life. Yet in our laws it is possible that if somebody abuses the privilege of a telephone—they use it for improper purpose, they make abusive phone calls, and the like—the courts have the power to take away that person’s telephone as the ultimate sanction for not respecting that right and the responsibilities that go with it.

We have other areas—for instance, radio telecommunications, using old walkie-talkies and those sorts of forms of early communications. Again, there are rights there that are balanced with responsibility. This bill provides a whole lot more checks about the steps that need to be gone through. But, ultimately, we are saying that if we cannot control the Wild West and the abuse of copyright, then the law needs to have the ultimate sanction to be able to suspend a person’s Internet connection. This Government brings to this debate that proper trade-off that goes into a society with rights and responsibilities.

I also want to respond to some of the points made by David Parker, because I really think they exposed some pretty flawed thinking. David Parker argued that copyright is a monopoly. I think the member has it all wrong. Copyright is actually about a private property right. If a person such as Dave Dobbyn creates a magnificent piece of music such as “Loyal”, do we oppose his being able to control the distribution and use of that music? Is he exhibiting monopoly rights over his creation? How is that different to me expressing my monopoly rights over the house I own, the monopoly rights I have over my car, or the monopoly rights I have over a creation I make as an engineer, in my field of endeavour? I really think that for Labour to align copyright with a monopoly right is a flawed perspective.

David Parker was a Minister of Energy in the previous Labour Government. He was in charge of the electricity network when we saw the highest price increases ever in the history of New Zealand—a 72 percent increase in power prices. The gall! He now stands up in this Chamber and lectures a Government that is seeing substantially less increase, and I have the figures. During Labour’s period in Government, power prices went up by 8 percent per year. In the first 2 years of this Government, they have gone up by 4 percent per year on average. I ask members to remember that that includes the introduction of the emissions trading scheme and the increase in GST. I say to members of the Labour Opposition—

JACINDA ARDERN (Labour) Link to this

I appreciate the chance to take a very short call on the Copyright (Infringing File Sharing) Amendment Bill. This call is directed at the Minister in the chair, the Minister for the Environment. I would like his response to a particular issue. I have been following some of the social media traffic in relation to the bill—and people are keenly watching the debate in the House tonight—and I am seeing two pieces of feedback coming through. The first is there seems to be an adverse reaction to the Minister’s references to Dave Dobbyn, and the second is about an incredibly important point, and that is the definition of “file sharing” within the bill.

CLARE CURRAN (Labour—Dunedin South) Link to this

There are so many things to say. Essentially, there are a couple of things I want to address. The Minister in the chair, the Minister for the Environment, opened a can of worms when he talked about fundamental principles. He started by talking about principles but then basically attacked Opposition members. He then talked about the fundamental problem with the Green Party. Well, I would like to tell the Minister what the fundamental problem is with the National Government, and it is that it is full of hot air.

The Government is full of rhetoric that does not match the reality, and there are so many examples of that. I would like to bring one example to the attention of members tonight that has core relevance to this debate: the importance of investing in our heritage and in our cultural content. Essentially that is the thing we are trying to protect through this legislation by providing copyright—protection of the creators’ works. Unfortunately this Government is taking away the funding, the support base, and the confidence from our creative sector, which is a great tragedy. Unfortunately this is the awful rhetoric we are faced with from this Government.

Let us look at some of the facts. The Minister attacked the Labour Opposition in relation to TVNZ 7. Television New Zealand appeared before the Commerce Committee last week and told that committee, which saw this legislation through and did all the hard work, that it was no longer a public broadcaster. Television New Zealand said it had been instructed that it was a commercial broadcaster, and that was before legislation has been passed through the House to disband the public sector charter. We are making Television New Zealand into a commercial broadcaster. There is no public broadcasting in this country; there is no investment by this Government in cultural content, which this legislation is designed to protect. We are ring-fencing the funding for Radio New Zealand and squeezing the heart and soul of New Zealand content.

Basically the Minister has contributed only hot air to this debate. He does not understand the issues. If it was the actual Minister who is taking this legislation through the House who was getting up and talking about principles, maybe we could have taken him seriously. This legislation, and Labour’s support for this legislation, is based on principles. Labour’s support for legislation is always based on principles. If we want to talk about the monopoly issue versus the failure of the market, which underpins this whole issue but which this Government refuses to address, then I want to make some comments about it.

I refer members to another submission. It was a very sensible submission provided to the select committee by one David Farrar. Mr Farrar, whom I may not always agree with on a number of issues, makes some very sensible points in his submission about the research on economic damage that is being claimed by many organisations—not the people who create content, but the organisations that represent them, such as the corporates and the monopolies that David Parker was referring to. He said that some rights-holders produce reports stating that the economic damage is in the billions, assuming that every single download of a work is a sale that would have otherwise occurred. This ignores the fact that many downloaders try—

Hon Dr NICK SMITH (Minister for the Environment) Link to this

There are a couple of points that I would like to respond to in the debate, and the first of those is the accusation, or the assertion, from Clare Curran that Government members—and particularly me—have been talking just hot air. Well, let us go through the dialogue that has occurred in the debate. In that member’s earlier contribution she made a great deal of, and objected to, the fact that the Minister of Broadcasting has decided not to provide additional funding to Television New Zealand for the funding of TVNZ 7. I pointed out that the previous Government, in agreeing to fund that channel, had said that the funding was for a limited period, and that Television New Zealand would then be able to run it from its commercial revenues.

I had a very simple challenge for the member, Clare Curran: if she objected to the Government not funding the channel, would she say whether Labour would have funded it? The members were absolutely silent. They could give the Committee absolutely no assurance, at all. My simple point to her was that it was the case of the pot calling the kettle black. If there is hot air, it is a party standing up in this Parliament saying that something is outrageous, is awful, and that the Government is not going to fund something, but then not being sure whether their party would fund it. I have to say to the member that that is hot air.

I can tell the member something else that was hot air, and that was the charter that the previous Government had within Television New Zealand. Everybody in the broadcasting sector has come to the conclusion that Labour’s charter was nothing more than hot air. I say to that member, before she asserts such claims in the House, to consider that point further, and to give us some idea, despite all the rhetoric about supporting the creative industries, where her party was when the call was between the creative industries and the filming of The Hobbit in New Zealand. Well, I think Damien O’Connor had the answer—that is, that self-interested trade unionists went ahead of the national interest and the interest of New Zealand’s creative industries.

I will also respond to the question from Jacinda Ardern about where in this bill the definition of file sharing is. It is quite simply set out in clause 7 of Part 1. That clause sets out quite clearly the definition of file sharing, and I further say that, yes, that definition does include an attachment that involves the sharing of files.

I was also very concerned that members opposite took offence at my enthusiasm for Dave Dobbyn, Bic Runga, Hayley Westenra, and other great New Zealand artists. I have to confess to being an enthusiast for all of those great New Zealand artists, and I am surprised that members opposite would be anything other than enthusiasts for those wonderful New Zealand musicians, whose creative rights and copyright interests this House should seriously consider protecting through copyright provisions, because those creative industries are so important to New Zealand.

CLARE CURRAN (Labour—Dunedin South) Link to this

We have just heard another lot of hot air. The Minister for the Environment is dissembling, shall we say. He does not understand the issues, he cannot enter into debate on the substantive issues in the bill, and he will not address the underlying major issues that I was attempting to address.

I would like to continue talking to the Committee about the market failure, which is essentially the most important issue that this country and this Parliament should be addressing in terms of how we as a nation can create, encourage, foster, and support our creative content, which is essentially our cultural identity, and can ensure that it is available to our citizens and to the rest of the world. We should also enable and encourage new business models to occur that will enable people to use the Internet, which is our future, and enable them to share content legally. When my colleague on the Commerce Committee, Jonathan Young, earlier talked about the—