NZ COPYRIGHT LAW VIOLATES HUMAN RIGHTS - Leon Tan

Sent to us [ Sat, Apr 16, 2011 at 9:25 PM ] from Leon Tan    (http://twitter.com/#!/khaoid)


In passing a controversial Copyright (Infringing File Sharing) Amendment Bill,[1] the New Zealand Government has followed the lead of the Swedish Government in certifying the claims of a media oligopoly against the claims of a far greater number of its own citizens. What is more, the new law comes with a presumption of guilt, meaning that anyone accused of copyright infringement is by default presumed guilty. On the other hand, owners of copyright need do nothing more than simply accuse alleged offenders, leaving the burden (and high legal costs) of proof of innocence to hundreds of thousands of individual Internet users in New Zealand.

Besides the obvious problem with the presumption of guilt, this move is extremely concerning for another reason. It involves the NZ government in violations of international treaties and rights frameworks such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic Social and Cultural Rights (ICESCR). These frameworks guarantee to NZ citizens [1] the right to express opinions through any media across geopolitical borders, [2] the right to privacy (meaning that private Internet surfing activities should not be monitored by ISPs or the government), and finally [3] the right to participation in cultural life.

Conveniently ignored until very recently in the contentious politics of intellectual property (IP), the conflict between IP legislation on one hand, and human rights legislation on the other, deserves greater scrutiny. For legal institutions have in the main apparently forgotten the existence of such rights and frameworks under continuous lobbying pressure from ruthless corporate oligopolies. A related case involves the Swedish government prosecuting organizers behind The Pirate Bay, under direct pressure from the US government and a predominantly American media oligopoly. At no time did the Swedish court pause to reflect on its own violations of international frameworks such as the UDHR and ICESCR, not to mention the European Convention on Human Rights.

As a matter of fact, according to the Advocate General of the Court of Justice of the European Union, ‘ordering an Internet service provider to install a system for filtering and blocking electronic communications in order to protect intellectual property rights in principle infringes fundamental rights.’[2] What is more, ‘The Committee on Economic, Social and Cultural Rights has previously recommended that every state conduct a general human rights impact assessment of their IP regimes.’ (Shaver and Sganga, 2009: 19) While the NZ government bends over backwards to service American and corporate interests, it has yet to deliver such an impact assessment in relation to existing IP legislation.

Article 15 of the ICESCR (to which NZ is party, having only reserved the right not to apply Article 8) is in fact rather clear concerning the rights to participation in cultural life. “To take part in cultural life implies the ability to access, enjoy, engage with and extend the cultural inheritance; to enact, wear, perform, produce, apply, interpret, read, modify, extend and remix; to manifest, interact, share, repeat, reinterpret, translate, critique, combine and transform.” (Shaver and Sganga, 2009: 9) It is not hard to see how file sharing fits within this general definition of cultural life.

If you are concerned about the NZ Government’s violations of human and cultural rights with its recent copyright amendment legislation, or with the thoroughly underhanded manner in which the government abuses urgent sittings of parliament, you might consider taking action of some kind. For instance, you can lodge a formal complaint against the government with the Human Rights Commission [ http://www.hrc.co.nz/enquiries-and-complaints-guide/ ], and/or write to MPs demanding that a formal human rights impact assessment is conducted without delay, in relation to NZ’s current IP regime, and/or support the move for a referendum.

New Zealanders who wish to continue exercising their rights to participate in cultural life by file-sharing may consider innovations from Sweden such as the IPREDATOR, [ https://www.ipredator.se/ ] a service which anonymizes web surfing by switching the IP number users receive from the ISP to an anonymous IP number, and enables an encrypted connection between computer and Internet using VPN.

Leon Tan, PhDArt historian and media theorist
Resident in Sweden and New Zealand


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References

Leon Tan, ‘The Pirate Bay: Countervailing power and the problem of state organized crime,’ CTheory: Theory, Technology and Culture, 2010, 33(3).

Lea Shaver and Caterina Sganga, ‘The right to take part in cultural life: On copyright and human rights,’ Wisconsin International Law Journal, 2009, 27.



[1] http://www.parliament.nz/en-NZ/PB/Legislation/Bills/f/8/e/00DBHOH_BILL9773_1-Copyright-Infringing-File-Sharing-Amendment-Bill.htm
[2] http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-04/cp110037en.pdf