A matter of trust – just mind the jolt

MIKE O'DONNELL
Last updated 05:00 27/07/2013

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OPINION: Six years ago we were sniffing around for a new Wellington home for Trade Me and a key factor was finding a building that was scalable for our planned growth, but also safe and secure in the event of earthquake.

The Odlins Building we ended up going with was 100 per cent of the (then) earthquake performance code. But just as importantly when Willis Bond renovated it, they put the new foundations through the fill and reclaimed land, deep into the bedrock. So in the event of a big quake the super deep foundations would turn the sudden jolt into a set of rolling motions. We put a lot of trust in those deep feet.

When the 6.5 quake struck Wellington last Sunday at 5:09 pm, our weekend staff got to experience first-hand whether our trust was well-placed. Thankfully the answer was yes. We suffered little more than a fallen sign and a small cracked window in a meeting room. Not bad when you consider the Odlins Building was erected in 1907.

Another exercise in trust is being played out as the government puts the planned review of the Copyright Act on ice.

The internet has been described as the world's largest copying machine, and it has fundamentally challenged what copyright really means. So, when the controversial Copyright (New Technologies) Amendment Act was passed back in 2008, Parliament required that its effectiveness for digital technology be reviewed in five years. Now, to be precise.

However, last week it was disclosed that the government has rain-checked this review until the Trans-Pacific Partnership (TPP) negotiations are over, saying it would be impractical for one to be undertaken beforehand.

The TPP is the mother of free trade agreements, aiming to liberalise the economies of nine countries: the United States, Australia, Singapore, Vietnam, Brunei, Chile, Malaysia, Peru and New Zealand. It covers a huge range of areas, from abolishing tariffs on milk powder through to intellectual property issues.

Along with millions of Pacific pesos in trade benefits, the TPP is also likely to bring a whole set of obligations for intellectual property in New Zealand, including parallel importing. This could extend to local rights-holders being able to prevent parallel imports (and raising the prices Kiwi consumers pay).

It could also bring in significant copyright changes for New Zealanders, including the return of the repealed Section 92A of the Copyright Act (effectively guilt on accusation), the amputation of "fair dealing" for incidental copying (like when your browser hits copyrighted material), and a requirement for ISPs to disclose your details on receipt of a complaint.

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There's a delicate power play in place here. New Zealand negotiators are trying to get us the best access they can for our big exports like dairy, meat and wool. The Americans are willing to look at this, but are keen to secure agreement to tangential areas like intellectual property. This, in turn, is likely driven by large American corporates' desire to extend the USA's grunty copyright laws to foreign countries like ours.

By all accounts New Zealand's trade officials have done a sterling job, seeking to give us the best access they could to big markets, without giving away too much to the Americans in terms of our IP. Now the officials have finished their job, and the final decisions and compromises will be made by the politicians.

While the decision to put the copyright review on ice wasn't surprising, it was surprising the reasons for the delay were removed from the Cabinet paper before its publication on MBIE's website. An optimist would say the reasons are to give the politicians enough elbow room to negotiate a great deal for New Zealand, consistent with the path taken by our officials. A pessimist would say the politicians have already made the call to compromise local intellectual sovereignty in return for the getting the access they want for our big traditional exports.

Right now no-one knows which of these two scenarios is happening, and the US's enforced secrecy around TPP means none of us will know for four years.

Many would say that any deal which requires the level of secrecy we've seen with the TPP is dodgy. Along with the mystery deletions from the Cabinet paper, there's no timetable about the path ahead. And with no Parliamentary vote on any compromise, there's scant public insight into the final form of the deal.

The risk is that when the copyright review finally happens, it will be handcuffed by confidential TPP requirements that could see a sensible and pragmatic approach traded for the ability to put butter onto New York bagels and wool into Vietnamese clothing factories.

New Zealanders are being asked to trust that our politicians won't trade our long-term intellectual property sovereignty for short-term economic gain. I hope the trust is well-placed, like the deep feet on our building. Otherwise consumers could really feel the jolt.

Mike "MOD" O'Donnell is a professional director and Trade Me's head of operations. Trade Me is a member of the Fair Deal Coalition

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