Public Lending Right for New Zealand Authors Bill

CHRISTOPHER FINLAYSON (National) Link to this

I will direct my comments this morning to Supplementary Order Paper 246, proposed by Judith Tizard, the Associate Minister for Arts, Culture and Heritage, in the House last night. In my second reading speech I explained why, following a visit to the Government Administration Committee by Sir Geoffrey Palmer, it was thought fit to include in the interpretation clause some definitions that were regarded as very important. The first is “author”, the second is “book”, and the third is “New Zealand author”. I will now analyse those definitions briefly.

I forwarded to the Minister a couple of comments that have been made to me, and I will now record some of those questions and perhaps get some answers to them. The first definition is that of “author”. Everyone recognises, of course, that for the purposes of this scheme an author has to be a natural person. But I have a couple of questions about subclauses (6), (7), and (8) of new clause 4A, which is proposed to be inserted in the bill by Supplementary Order Paper 246.

Subclause (6) states: “ ‘Author’ does not include a person who writes or illustrates a book as part of his or her duties under a contract of service or a contract for services.” This phrase seems to catch both employees and those commissioned. That seems to be the case even if, as is the case with academics, copyright for the work remains with the author. I am not quite clear whether the intention is to cover books that are written after the conclusion of a publishing contract. It seems to me that authors who wish to benefit from the scheme ought to be clear that the publishing contract they sign is expressly not a contract for service.

Subclauses (7) and (8) state: “ ‘Author’ does not include a person who receives payment for writing or illustrating a book wholly by way of a fee.” and “ ‘Author’ does not include a person who paid a third party to publish the person’s book.” Looking at it from a first-principles basis and not from the point of view that that is what is in the scheme already, I have difficulties working out why both those categories of person are excluded. Surely how the author is paid or whether he or she has contributed to publication costs will be irrelevant if the book proves popular in New Zealand libraries.

Let us take this hypothetical situation. A person may have difficulty getting his or her book published, so the person self-publishes, and the book then turns out to be very popular. It is sold in bookshops around the town and becomes very popular in New Zealand libraries. Looking at it from a point of principle, I ask why that person should be denied access to the benefits of the public lending right. I know the immediate answer is that that is not what the scheme currently provides. That is all very well; I acknowledge that. But looking at it from a first-principles basis, I ask why those people are not included, given that this is the time to review the public lending right scheme.

The second definition is “book”. The first clarification made in new clause 4B is that “ ‘Book’ means a publication that—(a) is listed in the national bibliographic database of the National Library of New Zealand …”. There are certain exceptions. There is a curious exclusion in new clause 4B(3) of “a text book intended for use in schools.” Those types of books are not included.

But let us take this hypothetical situation. Someone writes a book—for instance, Owen Marshall: Selected Stories, edited by Vincent O’Sullivan. It proves to be very popular in our shops and is regarded as the locus classicus of short stories in New Zealand, and it becomes the standard text for year 13 English students. It is used as a textbook. Therefore, why would that book be necessarily excluded?

Perhaps the hypothetical situation is slightly off-key, because the Supplementary Order Paper states “intended for use in schools.” What does that phrase mean? Maybe when the author was writing it he intended that ultimately it would be for use in schools. Those are just a couple of the questions I have on the definitions of both “author” and “book”.

New clause 4C defines a “New Zealand author” as “an author who—(a) is a New Zealand resident as defined in … the Income Tax Act 2007;” and who also satisfies certain other conditions. I have less of a problem with this definition, although it has been pointed out to me that there is an issue with what to do about expatriate writers. Someone who goes to live in Menton under the residency that is made available for authors and decides to stay there and continue writing for 4 or 5 years presumably does not qualify in terms of the Income Tax Act as a “New Zealand author”, but is still very much a New Zealander. I mentioned Katherine Mansfield as a hypothetical expatriate writer, and the Minister’s advisers said very helpfully that Katherine Mansfield is, of course, dead. I was most grateful for that information. I had not realised it! One can see hypothetically that an issue could arise, so I would be grateful for some guidance on that.

In the course of preparing for this debate I brought down to the Chamber a couple of books that I am reading at the moment. I started with the doyen of short stories in New Zealand, Owen Marshall, who has written a splendid text. But I just notice—and I would be grateful for the Minister’s guidance on it—that copyright in this text is actually held by two people. The introduction and the selection are by Vincent O’Sullivan, and the stories themselves are by Owen Marshall. This book currently qualifies for a payment under the Authors’ Fund and will qualify, one would hope, under the new regime that is being established. One works out that payments ought to be made to the author, but how does one sort out in a situation like this one, where there are two authors—Vincent O’Sullivan for the introduction and Owen Marshall for the substantive part of the book—who is to get what and in what proportions?

Of course, it is much easier with another book I am reading, My Father’s Shadow: A Portrait of Justice Peter Mahon by Sam Mahon. That case is quite easy, because he is a New Zealand author and, therefore, qualifies, and he is the only person who holds the copyright. If his book qualifies, then so be it.

To illustrate the principle of what would not qualify, the third book is a book written by the former British Foreign Secretary David Owen. It is called In Sickness and in Power. Members may know that when the Labour Party in England went crazy in the late 1970s and early 1980s, David Owen went off and formed the Social Democratic Party. Mr Barnett looks up; I think he was an active member in the Social Democratic Party. But anyway, at the conclusion of his time David Owen looked back and wrote a book called In Sickness and in Power. It is a very interesting book, and I recommend it to Mr Barnett when he is flying back to England. In fact, I may even give him my copy, because I think it would be good for him to read it.

As David Owen says, it has been observed for centuries that something happens to people’s mental stability when they are in power. The causal link between holding power and aberrant behaviour that has the whiff of mental instability about it was captured by Bertrand Russell’s phrase “the intoxication of power”. David Owen says that power is a heady drug, which not every political leader has the necessary rooted character to counteract: a combination of common sense, humour, decency, scepticism, and even cynicism. He then starts talking about hubris.

I think I may give this book to Mr Barnett as a farewell present, because I can certainly pick up another one from Parsons later on. But there is an example of a book that does not qualify, because it is not by a New Zealand author. It would not be entitled to payments under the public lending right scheme.

So I have some questions for the Minister, as to the definitions of both “author” and “book”, and I think we ought to touch on—albeit briefly—the definition of “New Zealand author”. When one is dealing with this legislation on a first-principles basis, I do not think it is enough to say: “Oh well, these matters are already included in the guidelines for the New Zealand Authors’ Fund. To broaden the definitions would extend the scheme to more titles and authors.” I think that is a pragmatic answer but not a principled answer, so I would be most grateful for the Minister’s comments.

SANDRA GOUDIE (National—Coromandel) Link to this

I follow on from my most excellent colleague Christopher Finlayson in speaking to the Public Lending Right for New Zealand Authors Bill. I want to cover Supplementary Order Paper 246, which, of course, did not go to the Government Administration Committee.

Before I do that, I would like, with the Chair’s indulgence and in line with the speeches of some of my colleagues, to acknowledge the valedictory speeches that were given in the House yesterday. We appreciated having the opportunity to hear those valedictory speeches, and we commend those members for doing so well. We wish them all the best in the future. This is not an easy environment. Who knows, at some point somebody might put all those valedictory speeches into a book, to be lodged in some our excellent libraries. It would be very interesting to see how many people actually picked up that book and read the speeches. I am not sure, though, with such a collection, who would be entitled to the author’s payment!

I note that we are sitting under urgency at the end of the parliamentary term. After 9 years of this Parliament, the Public Lending Right for New Zealand Authors Bill is going through the House under urgency. We have a Supplementary Order Paper, and it has not been to the select committee.

A number of matters were raised by my most excellent colleague Christopher Finlayson, and I share those concerns. I would really appreciate the Minister in the chair, Judith Tizard, taking a call to explain to us—because we have not had the opportunity to discuss these matters at the select committee—the rationale for including subclauses (6), (7), and (8) of the definition of “author” inserted by new clause 4A. I absolutely concur with my most excellent colleague Christopher Finlayson that those subclauses should not be there. In the purer sense, if an author’s book is in a library and if the author is entitled to the author’s payment, then there should be no condition around whether that author was under a contract of service or a contract for services. That raises the point about authors suddenly having to be smarter about the way in which they provide their service, capability, or expertise.

I note that subclause (3) of new clause 4A states: “If a book’s intellectual content is expressed only in text, ‘author’ means a person who created the text.” I raised at the select committee the issue of whether books in Braille, audio books, and CD books fell into that category, and whether that provision would affect the ability of the authors of those books to receive a payment. Let us face it: a lot of Braille books are taken out from libraries—more than we realise. It is incumbent upon the advisory group that establishes the regulations to work out the eligibility criteria. The advisory group will set all the criteria for eligibility for payment, and I wonder whether it will take into account the number of Braille and audio versions of a book as part of its assessment of a book’s eligibility. Use of such versions of books is significant. Often, they are in a small, select category of books.

One of the other things I was looking at was subclause (3) of new clause 4B. It states: “ ‘Book’ does not include a text book intended for use in schools.” It is interesting to note what my most learned colleague Christopher Finlayson said about textbooks. They are actually books that first were written and then were included in the school curriculum as text books for a particular subject. I wonder how that provision will affect an author’s payment.

There is also the issue in new clause 4C(a) of “New Zealand author” being defined as “a New Zealand resident as defined in section YD 1 of the Income Tax Act 2007;”. That is the criterion for establishing whether an author is a “New Zealand author”. I share the concerns of my colleague, because a New Zealand author may not have eligibility in terms of that Act, and therefore will be prevented from having a payment.

Hon JUDITH TIZARD (Associate Minister for Arts, Culture and Heritage) Link to this

It is an enormous pleasure for me to stand in the Committee stage of the Public Lending Right for New Zealand Authors Bill to address some of the questions that have been raised, but also to give a bit of background on this legislation. As Christopher Finlayson has said, this legislation is a result of a promise made by the Labour Party in its 1999 election manifesto. We referred the issue of the public lending right, or the Authors’ Fund as it then was, to the Arts Council, and Mr Finlayson happened to be the very excellent chair of the Arts Board. I was grateful to the council and the board for taking this issue up. They are independent bodies, and they have the responsibility for the Authors’ Fund almost by accident.

The public lending right, or the Authors’ Fund, was set up by a Cabinet minute in 1972, as a result of the work of people like Keith Sinclair, who was a Labour candidate in 1969. He was a professor of history at Auckland University, and a significant author as both a poet and historian. He had realised that people who did not have university or other public salaries, and who put their efforts into writing—people like Janet Frame—were often extremely poorly paid for their writing effort. Those authors are people who have defined the way New Zealanders see themselves. They have taken our collective and individual cultures and created something that is new, and in many cases beneficial, to New Zealanders. But even where authors are writing about the dark underbelly of New Zealand society, or indeed of humanity, it adds, of course, to our knowledge of ourselves and our society.

I believe that what all artists do is vital to us. We celebrate, we commiserate, and we mourn using their words. Who could imagine the burial of the Unknown Soldier, when that serviceman’s remains were returned from France to New Zealand, without the beautiful poetry of Vincent O’Sullivan? The memory of that, and of the tūīs singing in the pōhutukawa trees, will remain with me forever. It crystallised the emotion and the background of that ceremony.

We as a Government have said that all artists need to be compensated better for what they do; they are both the soul and the critic of our country. This bill is part of that work. Up to 2002, in response to the report on the Authors’ Fund, we looked at the amount of money involved, and I thank the Green Party for its excellent Budget bid in 2002. It has meant that $1 million more has gone to authors, both directly through the Authors’ Fund and the Prime Minister’s Awards for Literary Achievement, and indirectly through support, for example, for New Zealand publishers who are looking at book exporting. The Ministry of Economic Development has also assisted that work, and we are very pleased at the response to that.The public lending right issue, to a small extent, went away for a while after those developments.

However, the New Zealand Society of Authors came back to us and said it wanted stand-alone legislation, and this is the result of that very good representation. I acknowledge the Society of Authors and the many people who have been chairs and committee members of its predecessor, PEN New Zealand. I am thinking particularly of Kevin Ireland, Tessa Duder, Gordon McLauchlan, and Dame Fiona Kidman. A huge number of people have been involved, and undoubtedly I will leave many of them out. I also congratulate and thank Dr Lydia Wevers for her wonderful job in chairing the group after we had that Budget announcement in 2002, which led to the range of initiatives that include the increased funding for the Authors’ Fund. We have also seen an extraordinary expansion in the number of number of New Zealanders who are writing books that are being published.

We come to this legislation and I say, yes, to a large extent and in pragmatic terms, it does repeat the definition of “author” that is in the present scheme. It does that mainly because there was no ability to discuss that more widely. Sandra Goudie, I am afraid, suggested the bill had not been referred to a select committee, but of course it was. The Government Administration Committee, although it called for submissions and heard some of those submissions, was not able to give the House a recommendation in time. That is why we have Supplementary Order Paper 246 in my name. To the largest extent that it can, that Supplementary Order Paper keeps the present definition of “author”. It is a limited scheme. It does mean, for example, that overseas-based New Zealand authors who are not paying income tax in New Zealand, as defined under section YD 1 of the Income Tax Act 2007, are excluded. Indeed, I say to Mr Finlayson, if Katherine Mansfield was alive today she would probably be excluded, although I suspect that any tax she paid was probably paid through her father, so she may well have been covered.

The reality is that this scheme is very focused on authors who are writing in New Zealand, primarily for a New Zealand market, although we look at wonderful New Zealand writers like Lloyd Jones, who are finding increasing international audiences for their work. There is a process at present for dividing the Authors’ Fund amongst the various copyright-holders, and I cannot imagine that Vincent O’Sullivan would in any way assert that by writing the foreword he had written Owen Marshall’s book. The present scheme divides that, and there is an ongoing debate, which I think the House will have to address at another stage, about who is covered. This scheme is very much designed to support authors who are not otherwise compensated. When writing a book as a textbook, one is selling textbooks and, as an author, being compensated for that. The idea of this scheme was not to compensate people who, through the course of their work, were being paid to write, whether that was through a university or another educational institution. The scheme was not designed as a Christmas bonus for those people. It is intended as a recognition of people who are, to a large extent, full-time writers.

The only other question I have to deal with is Sandra Goudie’s one about Braille and audio copies. Audio copies are not covered, but the Royal New Zealand Foundation of the Blind has an arrangement with authors, and their works are recognised. It is not always possible to pay for every copy that is used, particularly by people with sight disabilities.

I commend this bill to the Committee. I thank members for their attention to the Supplementary Order Paper and the bill, and I look forward to the bill proceeding.

DAIL JONES (NZ First) Link to this

This is the Public Lending Right for New Zealand Authors Bill. It provides for authors to receive annual payments in recognition of the fact that their books are available for use in New Zealand libraries.

I have just a couple of points to make on the bill. It is interesting that “New Zealand author”, as defined in the income tax legislation, is not an author who is a New Zealander, but rather anyone in New Zealand who is writing a book that is available in libraries. So it is good to see that a wide range of people can be defined as writers in New Zealand, who are not necessarily New Zealanders. The wide range of new immigrants and groups that we have in the country, making a contribution, will also be entitled to payment in terms of this fund.

Of course, authors have a great habit of criticising members of Parliament, but I hope they take into account the fact that here, in the dying stages of this Parliament, we are rushing through legislation to enable authors to benefit. I hope authors bear that in mind, and do not write books criticising parliamentarians for rushing legislation through the House, when in fact this last piece of legislation in this session is here to benefit authors. I trust they will take that into account in future.

ALLAN PEACHEY (National—Tamaki) Link to this

I appreciate the opportunity to speak once again on the Public Lending Right for New Zealand Authors Bill. Again, I declare my interests as a beneficiary of the New Zealand Authors’ Fund and, no doubt, of the new scheme that is being introduced.

My two colleagues on this side of the House who spoke before me raised some very important points in relation to Supplementary Order Paper 246. I do not propose to repeat them, because I want to talk about something else in Part 1, but I offer the observation that we are a little bit disappointed in the explanations given by the Minister in the chair, the Hon Judith Tizard, and in the lack of detail in her answers. I would invite her to take a second call and be a little more precise. We on this side of the House were not particularly interested in her interpretation of New Zealand history or New Zealand literature. I would, however, be interested in her taking a call to explain to the House why, in listing all those New Zealand authors, she forgot about John A Lee, who was probably the greatest author to sit in this House, and a Labour member, as well. Of course, he and the party did come to a parting of the ways because of what he had written. But I leave that to the Minister.

I want to address Part 1, “Preliminary provisions”, and to talk a little bit about the intention to disestablish the Authors’ Fund, and to replace it with a public lending right for New Zealand authors. I look to the Minister to take another call and, in addition to addressing the issues I have already raised, provide this House with some assurances that the issues that led the Government to commit to this scheme in its 1999 manifesto—it is 9 years since then, but that is par for the course for this Government—issues that were raised by authors themselves and by Creative New Zealand, will not recur as a result of the change. This legislation disestablishes a fund that has been in place for quite some time. It disestablishes the role that Creative New Zealand had in administering that fund, and it hands that role over to the chief executive of a Government department, with an advisory committee. I want assurances from the Minister that taking that action will address the issues around the old fund.

Those of us who are authors have observed over time that the return from the fund has been diminishing—relatively slowly, but it has been diminishing. The other side of that coin, and it is a very good side, is that the fund has had to be spread around a much wider range of authors. That is good. I heartily endorse any effort at all to encourage more authors in New Zealand to continue to develop what is still a very young literary tradition. On that subject, it is very important that the House notes that we do not need a Minister to spend time on the last morning of the final sitting of this Parliament giving us a particular interpretation of that tradition. Her interpretation had very little substance in fact and very little substance in research.

So there are three things that I am seeking from Minister. The first is that she take another call and actually address the issues raised by my colleagues Mr Finlayson and Miss Goudie; the second is that she give us a little bit more of her interpretation of the historical and literary traditions of this country, and explain Labour’s reluctance to acknowledge one of its own, John A Lee, probably the finest New Zealand author to sit in this House; and the third is that, in relation to Part 1, she give this Committee the assurances that I am seeking—

CHRISTOPHER FINLAYSON (National) Link to this

Part 2 is the heart of the legislation; it establishes the scheme. It disestablishes the Authors’ Fund established by Norman Kirk in 1973, and it provides for the establishment of an advisory group. I do not think I need to detain the Committee for too long on this issue.

The heart of the matter is clause 10, “Matters that may be dealt with in regulations”. As I said in my second reading speech, there were some concerns about the extent of the regulation-making powers. Sir Geoffrey Palmer, that zealous constitutionalist, thought that the regulation-making power was too broad, and that is why, in Part 1, we included definitions of “author”, “New Zealand author”, and “book”. As a consequence of that, the Minister’s Supplementary Order Paper says there will need to be a minor amendment to clause 10(2) to provide that the regulations may add conditions to the definitions of “author”, “book”, “New Zealand author”, and “New Zealand library”, and of course we support that because it is a necessary consequential amendment, given what we have done in Part 1.

The advisory group will be established, and these are persons who must have appropriate skills to administer the scheme. Importantly, the advisory group must include at least one representative from organisations of authors, and at least one representative from organisations of librarians. These people will be appointed for a term of not less than 5 years, although the terms may be renewed. I think that the way in which the advisory group is set up is sensible. It does not allow capture by a particular group, so a broader range of interests will need to be taken into account when determining the way in which the scheme is to operate. I am hopeful the advisory group will work well. I should not have thought it would need to meet all that regularly. Certainly in the initial period there will be quite a lot of work to do, but thereafter the only issues that will arise for consideration are the book rate and the frequency with which the book rate is to be altered.

That is all that one needs to say, really, about Part 2. It is all pretty straightforward and we can move on.

ALLAN PEACHEY (National—Tamaki) Link to this

I had thought, after the debate last night—