26 Oct 2017

Online register would prevent 'Eminem-esque' troubles

8:30 pm on 26 October 2017

A copyright expert is calling for an online record of music and songs to prevent a recurrence of the Eminem pitfall that caught out the National Party.

Eminem performs at Samsung Galaxy stage during 2014 Lollapalooza Day One at Grant Park on August 1, 2014 in Chicago, Illinois.

Rapper Eminem. Photo: AFP

In a decision released by the High Court in Wellington the National Party was ordered to pay $600,000 for using music in a 2014 election advertisement that was too similar to the song "Lose Yourself" by American rapper Eminem.

Auckland University associate professor Alex Sims said a register would allow people to check their songs against other music to ensure it was not too similar.

"They've got a copyright register in the US so that could be looked at. It would have a sound recording so you could hear it and it would have the owner on it, if you had a recording of something you could go into that database and play that recording and the technology should be able to pick it up.

"Ideally we'd have an international register, but most countries are signatories to the Berne convention which says we cannot have a copyright register."

She said New Zealand had a paper-based register many years ago, but it could be rebuilt using modern technology.

"A lot of people over the years have proposed one. It's never happened but I do think now that there is an opportunity to have one because there's a new technology called Blockchain and it's ideally suited to having a register."

Although Ms Sims said she was not confident about a register being developed in the foreseeable future, there are other copyright issues that may be looked at sooner.

In June the government announced its decision to review the Copyright Act 1994 - its first review in over a decade.

Intellectual property lawyer Sébastien Aymeric said the issue of fair use was likely to be discussed as part of this review.

"There's quite a bit of talk about fair use in other jurisdictions, but not in New Zealand. So in the United States fair use enables you to use copyright content in a limited way, for example if you're not making any commercial benefit, but in New Zealand it's a bit more black and white and infringement is more readily found because that fair use exception doesn't really exist."

Mr Aymeric said a fair-use clause would have been unlikely to change the outcome of the Eminem-National Party case.

"It's not ground breaking, it's applying pretty well established principles of law."

He also said while a register may help eliminate copyright infringements, the current system, although complex, worked well.

"The rule of thumb, and it's quite basic really, is that if you haven't created the content, it's likely to be protected by copyright so you should be diligent - especially if you're a business or a political party."

Mr Aymeric said while it was unlikely for individuals to be sued for copyright infringement the Eminem-National Party case had brought about good public awareness.

"A good example is Facebook, they have software that automatically detects when users upload videos with music in the background that they don't own the copyright to. So you can get cases that seem over the top like a parent posting a video of their child dancing to a famous song and it gets taken off.

"But, technically that's copyright infringement in NZ."

The National Party currently has a claim against the suppliers and licensors of the track to try and recoup their costs.

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