HOSPITALITY ASSOCIATION OF NEW ZEALAND

Submission by

Hospitality Association of New Zealand

to the

Commerce Committee

on the

Copyright (New Technologies and Performers’ Rights) Amendment Bill

9 March 2007

Hospitality Association of New Zealand
Level 2, Radio Network House, Corner Abel Smith and Taranaki Streets
PO Box 503, Wellington
Phone: 04 385 1369
Fax: 04 384 8044
www.hanz.org.nz
nsc@hanz.org.nz

Copyright (New Technologies and Performers’ Rights) Amendment Bill

Members of the Select Committee

The Hospitality Association of New Zealand represents a diverse variety of New Zealand hospitality businesses including restaurants, caf￩ bars, hotels, off-licenses and a wide array of short and long term accommodation providers.

The Association is voluntary and is primarily funded by membership subscriptions. Our membership of approximately 2300 plus members employ 11,610 full-time and 19,674 part time employees for a total of around 30,000 people. Approximately 83% of the Association’s members are small businesses and owner operated. The Association asserts that this figure mirrors the wider hospitality industry.

There is also a perception that the Association speaks for and represents the interests of the hospitality industry as a whole.

The Association has considered the bill and makes appropriate comment on selected aspects of the bill.

The Association would like an opportunity to be heard before the Committee on its submission.

Bruce H Robertson
Chief Executive
Hospitality Association of New Zealand

Executive Summary
The Association considers copyright compliance complicated and urges the Committee to have regard for simplification measures when considering the bill.

The Association supports measures to provide clarity and consistency to copyright law and in doing so create an environment where users may use and enjoy intellectual creations confidently and appropriately.

The Association would also like to recommend that the Committee take this opportunity to further simply copyright law as and in particular lessen the compliance burden on business by preventing multiple licensing in respect of the commercial use of the same work.

The Association appreciates that the creators of works are entitled to a reward and that innovation and creativity should be encouraged. However, a significant proportion of the Association’s members still strongly object to paying copyright fees as they believe that copyright fees should be covered by the cost of the work at the point of purchase. Members see copyright fees as a further compliance cost and as such take the view that they are particularly onerous for small to medium businesses.

Recommendations:

It is the Association’s view that:

If the Copyright (New Technologies and Performers’ Rights) Amendment Bill is to proceed, that the it proceed with the following amendments:

• That format shifting be permitted for commercial as well as private and domestic use with the knowledge that the copyright protections contained within the Act remain.
• That format shifting not be restricted to just sound recordings.
• That the Act be amended to prevent multiple licensing in respect the use of an original work in commercial settings.
• The Association has no comment in respect of any other provisions in the bill.

1. Introduction

1.1	The Association recommends that the Bill proceed with suggested amendments.
1.2	The Association supports the bill’s aims to provide more clarity on how the Copyright Act (“the Act”) and copyright licensing in general applies.
1.3	The Association is also supportive of the bill’s provisions to update the Act for developments in new technologies and in particular to address the issue of format shifting.
1.4	The Association considers a licensing scheme appropriate to reward parties involved in the creation of intellectual works used for commercial purposes and in doing so enable such resources to encourage innovation.
1.5	The Association therefore welcomes consideration of any measures to simplify copyright licensing and encourage copyright owners to be able to easily authorise appropriate and fair use of original works and in doing enhance society. Clear and consistent copyright law also assists compliance.
1.6	The Association provides specific comment on the bill as it applies to the Hospitality industry.

2. Discussion

2.1	The bill attempts to distinguish between personal and commercial use of digital material when exempting format shifting for sound recordings for private and domestic use. However, the provisions of the bill are inconsistent, will not satisfactorily achieve the desired copyright protection against unauthorised use of intellectual works and merely serve to complicate rather than simplify copyright law.
2.2	Specifically, the effect of the Bill will only enshrine the rights of corporations over cultural and scientific property at the expense of the rights of innovators and creators to income from what they have created as well as the ability of society and end users to use intellectual works to enhance business and entertainment.
2.3	Further, the exceptions in relation to format shifting apply only to sound recordings and not to audiovisual works despite the same copyright issues in respect of visual works. Another inconsistency in the bill.
2.4	The Association considers that the bill should be amended to extend a right to format shift to visual as well as sound recordings and that format shifting in commercial environments also be included as a permitted act. Such format shifting activities would still be subject to the provisions of the Act in respect of copyright licensing with all of the protections contained in the legislation. This means that venues would receive the flexibility to be able to enjoy the advantages of new technologies and copyright owners would still retain the protections and ability to authorise and licence public performances appropriately as at present.
2.5	Further the Association cannot appreciate the need for the exception in relation to format shifting to expire after 2 years and recommends, in the interests of clarity and certainly, that the bill include a positive determination on format shifting.
2.6	Members of the Association tell us that copyright issues and compliance is complicated, especially for smaller businesses.
2.7	By way of example, at present a venue (such as a licensed bar or entertainment venue) that plays music recordings on premises such as through a system or by the use of a DJ must pay licensing fees to two separate licensing bodies in respect of the same recording. This is because there is copyright in the song, in terms of the composition and/or the lyrics and there is also a copyright in the recorded version of the song. The practical effect of this distinction is that the broadcast or public performance of a recording requires two licences from two different licensing bodies – one from the Australasian Performing Rights Association (APRA) for the copyright owners of the song and to Phonographic Performances New Zealand (PPNZ) for the recording. Hardly a simple and clear way to ensure compliance with copyright protection. Indeed, the Association has worked tirelessly to prepare and maintain an information resource to ensure Association members understand the complexities of copyright compliance and continues to answer frequent enquiries from understandably exasperated and confused members.
2.8	The Association considers that copyright law should provide clarity and support an environment where the rights of creators of works are protected but that does not prohibit legitimate and appropriate end use of works for the enjoyment of all.
2.9	The Association considers that this could best be achieved where one licensing body has exclusive rights to licence public performances of sound and visual works and that reward for innovation be reflected in the price of works. Additionally, the prospect of one universal licensing body that has responsibility to issue all licences in respect of a work should be given consideration with one licensing body and all licence costs reflected in the price of a work at the point of purchase. Such a move should then provide sufficient resources to ensure compliance and in turn benefit copyright owners.
2.10	The Association is aware that the Act presently enables one licensing body to issue public performance licences but does not prevent more that one licensing body from licensing the use of copyright works. The effect of this is that venues and businesses are confronted with multiple licence fees in respect of the same work which adds to the compliance costs on business.
2.11	The Association can think of no sound reason why all copyright owners cannot have their copyright issues represented by one universal licensing body in respect of the same work and that the Committee give consideration to amending the Act to provide for one licence in respect of the particular use of an original work.
2.12	The Association supports the bill’s measures to recognise communication of information as technology neutral and allow for technological developments such as new mediums and forms of communication of information and intellectual creations.
2.13	The Association also supports the bill’s measures to enable and make clear the ability of Internet Service Providers to deliver information over the internet without risking copyright infringement.

3. Specific comments on the bill and technical amendments

3.1	Clause 44 of the Bill creates a right to copy sound recordings for private and domestic use subject to certain conditions. As discussed above the Association supports an extension of this right for commercial use and an amendment to include the format shifting of visual recordings.
3.1.1	Clause 44 should therefore be amended by omitting the words “sound recording” and the words “private and domestic use” in the marginal note to the new section and inserting “original work”. And that all references in the clause to “sound recording” be omitted and the words “original work (being a literary, dramatic, musical, or artistic work or a film)” be inserted.
3.1.2	Clause 44 be further amended by omitting section 81A (1) (e) thereby removing the new sections confinement to private and domestic use and enabling format shifting for commercial uses.
3.1.3	Section 81A (3) should also be omitted to remove the requirement to review the new section after 2 years of operation.

3.2

Amending Clause 66 of the bill to insert a new section 147 A after section 147 of the Act as follows: “147A Uniform licence for commercial use of original work Where a person uses an original work (being a literary, dramatic, musical, or artistic work or a film), for a use other than private or domestic use, that person shall not be required to obtain more than one copyright licence in respect of the use of that original work.”

3.2.1

The effect of this amendment would prevent multiple licensing bodies from issuing licences to the same user of an original work as at present and illustrated by the APRA and PPNZ example set out at point 2.7 above.

 4. Conclusion

4.1	The Association considers that copyright law should provide clarity and support an environment where the rights of creators of works are protected but that also does not prohibit legitimate and appropriate end use of works for the enjoyment of all.
4.2	That Parliament make a positive determination in respect of format shifting negating the need to review the measure after 2 years of operation and that the bill enable format shifting of visual as well as sound recordings for commercial purposes with the safeguards presently contained in the Act.
4.3	The Association also supports and suggests measures to amend the bill to provide certainty for commercial users of original works by suggesting a simplification of licensing schemes. Specifically, by preventing multiple licensing in respect of commercial use of the same work.

Recommendation

That the bill proceed with suggested amendments.

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