Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill

Although it is not strictly within the Standing Orders, I apologise for the confusion caused on the last matter. I would observe that other members of the Opposition were of the same view as I was, and, indeed, as was the Minister—she thought I had the call as well. As the Minister has pointed out, it appears that we were confused with the Credit Contracts Act, which was also split during the debate. We apologise for that confusion, but it was widely held on all sides of the House.

The National Party will strongly oppose the passing of this bill, because we believe it is a hugely privileged piece of legislation that will favour only a few in the community. It will not work and, what is more, it breaches a promise the Government made. In her Speech from the Throne, the Prime Minister promised that she would deliver to the arts community a 2-year prohibition on the parallel importing of CDs, videos, films, books, and software. Where is the Prime Minister’s promise of a 2-year import ban on software in this bill? Nowhere. Where is the Prime Minister’s promise of a 2-year ban on the importing of books in this bill? Nowhere. Where is the Prime Minister’s ban on the importing of CDs and videos for 2 years? Absolutely nowhere. We think the title of this bill should more appropriately be the “Copyright (Broken Promises by the Prime Minister) Bill”, because it fails to do what the Prime Minister promised she would do.

When she got the Greens’ support for this bill, the Prime Minister said she would have a 2-year ban on the importing of books, videos, CDs, and DVDs to protect the New Zealand arts community. That is what she promised the Greens when she said: “Help me get this bill passed.” Is there a ban on any of those things for 2 years? No, so it is incorrect for the Prime Minister to try to tell this Committee that this is a Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill, when what it is really about is her broken promises to the Greens.

We know that what is in this bill will not work. This bill should more correctly be called the “Copyright (Put up the Price of DVDs and Videos) Bill”, because that is the consequence of what this Government is trying to do. We know that the evidence from Australia is absolutely clear that parallel-importing bans do not assist in the development of the arts industry. It has been estimated by the Government’s own advisers that as a result of the parallel-importing ban in Australia, consumers there pay $6 more than American consumers for musical recordings. That means that over $1 billion more is paid by Australian music listeners and video watchers than would have been the case had the ban not been in place.

💬 Hon Judith Tizard: Music is not covered.

That is absolutely right. It is not covered because the Minister and Helen Clark have broken their promise to the Greens and to the arts community of New Zealand, because they said they would have this ban. What is more, in each part of this debate we intend to go through page after page of official documents that show, time and time again, the Government’s advisers saying that the Prime Minister’s promise was not practical and would not work. This is the “Copyright (Broken Promises by the Prime Minister) Bill”, because yet again another promise made by the Government in the Speech from the Throne is not included in the bill.

We will be talking about this issue later in other parts of the debate, but there was the extraordinary circumstance of the former Minister of Commerce, Paul Swain, thinking that there should be a ban on the parallel importing of books everywhere except in libraries. How minute, how detailed, can Government interference get in respect of reading material?

Just before I call the next speaker, I point out that the title debate is a very narrow debate. Members need to ask themselves whether the proposed title adequately describes the bill. I just say that to indicate to members what I will be looking for.

The title of this bill—Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill—is a load of rubbish. This bill is nothing more than a “Guilty Until Proven Innocent” bill, because that is what it sets out to do. The bill contains a clause that provides that a person is guilty regardless of whether he or she is a legitimate business person. You are guilty until you can prove that you—[Interruption]

I am not talking about the Chairperson.

💬 David Benson-Pope: Yes, you are.

I am not talking about the Chairperson, I am talking about the public in general—the business people. [Interruption] I raise a point of order, Mr Chairperson. We have just gone through the second reading without an opportunity to speak on the bill. I ask you to keep the senior Government whip and the Minister quiet during our speaking time. If you want us to continue on this bill, I suggest that you keep those members quiet.

The CHAIRPERSON (H V Ross Robertson): I am the sole judge of the situation in the Chamber. I will call order when I believe that someone has gone outside Speakers’ rulings or the Standing Orders. That has not happened at this stage.

I raise a point of order, Mr Chairperson. I ask you to keep a very close eye on those members on the other side, to give us a fair chance to have a say.

The CHAIRPERSON (H V Ross Robertson): I always do, Mr Catchpole.

As I was saying, the title of the bill should be nothing more than “Guilty Until Proven Innocent”—

The CHAIRPERSON (H V Ross Robertson): Order!

I was not referring to the Chairperson, at all.

The CHAIRPERSON (H V Ross Robertson): You cannot the use the word “you”, because it refers to the Chair.

The general public is guilty. Every businessman or woman in the country who imports any sort of books, DVDs, or CDs is guilty unless he or she can produce the paperwork when asked at any time to prove whether that business is legitimate. According to this bill, the general public and every business person is guilty until they can prove that they run a legitimate business. Those people could have been running a legitimate business for many years, importing DVDs, CDs, and books. However, this bill turns the onus of proof around completely and makes those people guilty until they can put all the information on the table. The request for information can be made purely on the whim of the Customs Department or the Comptroller of Customs. If they feel they want to slow down the importation of other goods, they just have to say that that person is guilty and prove it. Businesses will come to a halt unless they can prove that they are not bringing in pirated copies.

That is where the bill goes wrong. It attempts to try to prove that everybody is guilty, rather than put the onus on the ones who want to bring charges to prove that they have a case before they can stop a situation. It is a misnomer to name the bill the “Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill”. It is a “guilty until proven innocent” bill, and that is the wrong way to go about it. It hinges on our civil rights. All that is needed is another genuine importer to lay a complaint and a person is considered to be guilty, and that person will have to go through all the hoops to prove that he or she is not guilty. That is where this bill goes wrong. This bill should be named the “Guilty Until Proven Innocent Bill”.

I rise on behalf of the ACT party to speak to the title, the Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill. There are a number of variations we could have of the title. As the title stands at the moment, it does not convey the intention of the bill or what the bill is all about. It is not about copyright, at all. It is not about protecting copyright. Copyright is an intellectual property. There is no threat to any copyright owner here. The bill is actually about protecting the licensing rights of big US companies, and it could be called a number of things. One title that I am sure the Minister would have loved to call the bill is the “Currying Favour with Dubious Artists Bill”.

The Government, when it set out the purpose of the bill, said it was to protect local artists in creative industries. The Minister nods her head. The bill could more honestly be called the “Currying Favour with Local Artists Bill”, because that is exactly what it will do. It will give them a false sense of security for 9 months in terms of trying to send people rushing out and forcing them to buy local stuff, when the Minister knows that they can use a computer. They can go online and download anything they want—and that leads me to some other titles we could use. Instead of calling the bill the “Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill”, we could call it the “Extra Cash for Pirate Burners Bill”, or the “Boost the Piracy Market Bill”, or, even better still, the “Extra Cash for School Kids Bill”. We all know that all kids need do is go on to the Internet—and I do not know how many people in New Zealand are online these days, but it is huge proportion of the population—and go into one of the websites that teenagers are very skilful at doing, burn their own CDs, and sell them in the playground. That is why I say the bill should be titled the “Boost the Piracy Market Bill”, or the “Extra Cash for School Kids Bill”.

Another title for the bill could be the “New Zealand Customs Protecting US Incomes Bill”, because that is what the bill will do. That is what the title should state in order to reflect the purpose of the bill, because US incomes will be protected by free policing at the border by the New Zealand Customs Service. We could call the bill the “Customs Officers Film Club Maintenance Bill”, because customs officers will now be required to view all the DVDs, etc. that come through, to make sure that they do not breach the legislation, and this legislation—as the Minister nodded her head before—is to protect local, creative industries. I come back to the title we have now, the Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill. The other point Brent Catchpole alluded to was the onus of proof. Those words in the title turn the whole onus of proof thing on its head, and we will come to that later on in the Committee stage when we get to the onus of proof aspect. The Government is stepping on to a very slippery slope with that onus of proof clause in the bill. How far will it continue this—when it slips those sorts of things into titles and uses them as a way to slide things through?

The other thing I would like to address in the title is the year—2002. Members should look at how long it has already taken us to deal with the bill, and every time we go into urgency we get into the situation where we look at how we pass legislation in urgency. The 1999 Speech from the Throne referred to the fact that parallel importing of CDs, videos, films, books, and software would be prohibited for 2 years. The Ministry of Economic Development did do a review. We are now at the end of 2003, passing this bill under urgency—and I am sorry that we are keeping the Minister up, but these are the facts.