by Dr Owen Morgan

A Bill currently before the Commerce Select Committee of the New Zealand parliament addresses the problem of orphan works held by broadcasters in their archives.  Submissions have recently closed in respect of the Television New Zealand Limited Amendment Bill (Television New Zealand is the primary public broadcaster in New Zealand.)

There are two main parts to the Bill which amends the Television New Zealand Limited Act 2003.  The first part provides for amendments to the principal Act relating to the functions of Television New Zealand Limited (TVNZ).  In particular, ‘it replaces the TVNZ Charter in section 12 of the Act with a briefer, and less prescriptive, statement of functions’.  The other part, which is the subject of this note, enables TVNZ to rescreen certain programmes held in its archives. The purpose is to overcome the problem that some rights holders cannot be located, therefore TVNZ cannot negotiate terms for rescreening and the programmes languish in the archives.

Clause 10 of the Bill inserts a new Part 4A into the principal Act comprising sections 29A to 29S.  Other provisions add a new Schedule and amend the Copyright Act 1994.  In brief, the effect of these provisions is to permit TVNZ to screen archived works ‘free of charge’ on certain specified ‘delivery platforms’.  Persons with an interest in an archived work lose ‘any rights and privileges’ they may have under contract or under the Copyright Act in relation to the screening of the work.

The actual wording of the Bill states that those rights and privileges ‘cease’. The Bill also sets out a scheme to compensate interested persons including a fund from which compensatory payments may be made to them. The reality is that persons are deprived of their rights, whether they are able to be located or not, in return for a legislatively determined handful of silver.

The Scope of Clause 10

The scope of Clause 10 is determined by the age of the works.  Although the Minister of Broadcasting stated (See Hon Dr Jonathan Coleman in Hansard 23 March 2010), while moving the introduction of the Bill, that, ‘Television New Zealand’s archive is a unique and valuable record of New Zealand’s historical, social and cultural life’; the ‘archived works’ covered by the Bill are restricted to works made before 27 May 1989 (section 29A).  If the Bill is really concerned with ‘New Zealand’s historical, social and cultural life’, then the works covered by the Bill should be determined by two factors: (i) their ‘historical, social and cultural’ value not their age; and, (ii) whether rights holders can be located. Where the works are held should not be a determining factor – in other words, I argued in my submission to the Select Committee that the works should include orphan works held by all broadcasters who screen publicly funded programmes.

Rescreening Free of Charge

Section 29C provides that if TVNZ complies with certain requirements, it may screen archived works on various ‘delivery platforms’ as well as permitting Māori Television Service (MTS – New Zealand’s national indigenous broadcaster) to screen works.  The key requirement is that TVNZ must screen the works ‘free of charge’.  The latter term is not defined.  It is not clear whether the Bill intends that the screening should be free of charge to an intermediate delivery platform such as TV3, or free to MTS or free to the public.  A comment by one of the Members of Parliament who spoke when the Bill was introduced suggests that the term is intended to mean ‘free to air’. (See Jonathan Young in Hansard 23 March 2010).  If that indeed is the meaning of the term, then the way the Bill is drafted may have defeated its purpose.  In practice, it may be impossible for TVNZ and MTS to comply. Their channels are free to air, but they are also screened on pay for view platforms such as Sky Television. Screening an archived work by TVNZ or MTS through Sky Television would appear to be a breach of section 29C (2).

A Dangerous Precedent

Section 29D (1) provides that the ‘rights and privileges’ of persons with an interest in an archived work cease and are replaced by rights provided in the Bill (Rights to Compensatory Payment.).

There is some logic in permitting works to be rescreened where none of the rights holders can be located. However, this provision deprives all rights holders of their rights under both copyright and contract whether those rights holders can be located or not.

Copyright is an exclusive right that enables a right holder to determine the use of a work; and contractual rights and obligations are the subject of negotiations.  This provision sets a dangerous precedent that strikes at the heart of intellectual property law by depriving the right holder of rights without any opportunity to negotiate or to appeal.

It also ignores the reality that money may not be a proper form of compensation.  For whatever reason, a right holder may wish to prevent the screening of a programme.  An example of the lack of thought that has gone into this provision is that it deprives a right holder of moral rights and compensates him/her with money– surely, a unique solution given the nature of moral rights.

Section 29D (2) does provide that a person’s rights and privileges continue to the extent that TVNZ does not screen the work free of charge – however, that would, presumably, be a matter for the interested party to establish.

Severing Clause 10

In my submission to the Select Committee I argued that Clause 10 and related provisions should be severed from this Bill for three main reasons:

1. Section 3 of the Television New Zealand Act 2003 states that the purpose of that Act is to ‘(a) provide for the existing State enterprise Television New Zealand Limited to be split into a Crown entity conducting a television business and a State enterprise conducting a transmission business’.  The Act is concerned with matters such as ‘Structure and shareholding’, ‘Reporting’, and ‘Ministers and editorial independence’. Detail relating to a scheme to deprive rights holders of their rights in order to allow TVNZ to screen archived works simply does not fit with the Television New Zealand Act 2003.
2. Clauses 13 and 14 provide for amendment to the Copyright Act 1994.  The subject matter of Clause 10 is the rights provided for under the Copyright Act and under contract.  If the current scheme is to proceed, it should be as part of the Copyright Act where it can be properly assessed against other provisions in that statute.
3. If the scheme is to proceed, the relevant works should be available to all broadcasters, no matter whose archive they are held in.  This would ensure the widest possible communication of works of interest to the public. The distinguishing feature of orphan, archived works is not that they were first screened by TVNZ. That is just an accident of timing. The works in question are distinctive because they provide a ‘valuable record of New Zealand’s historical, social and cultural life’. TVNZ is no longer the sole broadcaster in New Zealand nor is it the sole free to air broadcaster. TV3 and MTS both have access to public funds and screen programmes of historical, social and cultural value. It is in the public interest that the scheme should be broadened to include all broadcasters.

Dr Owen Morgan is a Senior Lecturer at the University of Auckland

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