New Zealand's creative industries are potentially losing billions of dollars a year because the laws are not tight enough, according to one Australian IP expert. But two of NZ’s leading IP lawyers disagree.
And Dr George Barker, director of the Centre for Law and Economics at the Australian National University, believes that figure would be much higher if New Zealand’s laws better protected property rights and forced people to pay for goods rather than take them for free.
"It could be around $10 billion, but it would probably be higher,” he told Radio NZ last month.
One way to tighten up intellectual property law would be to extend the copyright time period of 50 years, he said.
"Why not have copyright law like property law - ie it lasts forever?"
"Songs like those of Split Enz, coming up in eight to nine years, they'll fall out of copyright protection.”
But Earl Gray, IP partner at Simpson Grierson, doesn’t believe Dr Barker’s focus is right.
“New Zealand's IP laws are consistent with those of our key trading partners, all of which are parties to the same international IP treaties as New Zealand,” he told NZLawyer.
“Moreover, New Zealand is still a net importer of IP. While we may have nostalgic sympathy for extending protection for Split Enz music, New Zealanders listen to huge amounts of overseas music.
“Also, while separate protection for the particular sound recordings may expire soon, the writers of Split Enz music are still alive and they and their successors will therefore have copyright protection for the words and music for decades to come – until 50 years after their death.”
The problem of accessing IP for "free" is a worldwide issue, not just a New Zealand one, Gray said.
“Copyright and other IP rights are designed to incentivise innovation by providing potential reward for creation.”
Some IP, such as pharmaceuticals, involves huge investment and brings medical progress, while film, TV and other content also involves very substantial investment, he said.
“There is international debate about the future of copyright (and patents), and whether the incentives work in the way intended.”
Like the challenge created by availability of digitised music over the internet, the Global Mode case brought to the fore challenges to existing distribution models for film and TV content, Gray said.
“Rather than try to put up special New Zealand IP barriers that either won't work or will simply make us unattractive because our laws are different, New Zealand needs to continue to strive to provide an integrated offering that creates an environment that attracts investment. In general, it's not our IP laws that get in the way.”
AJ Park managing partner Damian Broadley echoed his sentiments.
“I am not an economist and can't really comment on the economic argument, but I disagree with the tenor of the article in general,” he said.
“New Zealand has relatively strong intellectual property laws by international standards, and our copyright law is no exception.”
He suspected the issue was more around how to enforce the law against widespread infringement, rather than the law itself.
“Extending the copyright period would make no difference to that.”
He also noted that Split Enz songs will last until 50 years after the death of the composer.
“So it's got a long way to go yet.
“There would be very few New Zealand owned copyright works that would still be commercialised after the end of the copyright period, even if copyright were extended beyond the life of the author plus 50 years. Will anybody still be commercialising the music of Split Enz in any material way 50 years after those composers have died?”