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By Oala Moi

Background

Papua New Guinea’s copyright law is known as the Copyright and Neighbouring Rights Act 2000 (the 2000 Act). The 2000 Act repealed the Copyright Act 1978, in which the latter had been passed but never enacted. Presenting the Copyright and Neighbouring Rights Bill 2000 (the Bill) to parliament on 18 July 2000 for a second reading, Minister for Justice Kilroy Genia said:

“[T]his particular Act is to enhance the preservation, promotion and development of our people’s “exclusive rights” to their creativity, music and cultures as well as their sustainable use and preservation of our vast and rich cultural biodiversity….”

Mr. Genia continued:

“…[O]ur authors, composers, carvers, performers, producers, broadcasters can begin to reap some benefits from their efforts. Authors, artists and investors, etc may expect to receive substantial monetary benefits from royalties and fees for the use of their work.”

Mr. Genia argued that the Bill was also:

“[A]imed at safeguarding the rights of authors or composers of artistic, musical, literary, photographic and cinematographic works.”

Mr. Genia rationalized non-enactment of the initial Copyright Act 1978 stating:

“… [I]ts implementation was subject to a statutory deposit legislation, which was never enacted due largely to uncertainty and confusion as to which government agency would be depository for the purposes of the copyright legislation…Coupled with uncertainty and confusion, there was a lack of appreciation of implications of copyright in PNG which was compounded with the misconception of the financial implications this had on the country. Principally, those were the reasons why the [Copyright] Act 1978 was never implemented….”

It would seem that Papua New Guinea’s membership of both the World Trade Organization and the TRIPS Agreement in 1996 provided a significant impetus for this legislation. Again, Mr. Genia told parliament:

“[W]e have our international obligations and the accessing by Papua New Guinea to both World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) has meant that, in relation to this issue, our country is obliged to enact appropriate intellectual property rights legislation … to promote creative intellectual activity..[E]nacting …this legislation will enable PNG to meet its obligations under the WTO, Asia Pacific [Economic] Co-operation (APEC) and the WIPO. The bill complies with WTO’s [Agreement on Trade Related Aspects on Intellectual Property Rights].”

The Bill did not encounter serious opposition. However, a parliamentarian, member for Imbonggu the late Peter Peipul, expressed reservation on behalf of consumers in PNG:

“In Australia and America, certain pieces of items are very expensive and when they are pirated into our country, it benefits many of our population because we buy these items cheaply. I am not saying we should oppose this legislation but we must take into account the benefits…But I wish to say that our country do[sic] benefit from the absence of copyright laws.”

The Bill was passed on 19 July 2000, certified by the Speaker on 8 November 2000, and came into force on 1 July 2002.

Introduction

The year 2012 marks the 2000 Act’s tenth anniversary. It is a milestone indeed. But it also provokes reflection on what PNG has achieved over the first ten years. For the purposes of this review, we adopt an assessment by the Trade Review Policy Body of the World Trade Organization (WTO), which states that:

“…Since 2005, [PNG] has reviewed and amended [amongst others] … the Copyright and Neighbouring Rights Act 2000… [It waits] issuance of [a Certificate] of Necessity by the Attorney General’s Department [to allow] for the establishment of collective management organizations [under] the Copyright and Neighbouring Rights Act (Copyright and Neighbouring Rights (Collective Management Organisations) Regulation).  A study is examining the feasibility of establishing CMOs in PNG…The authorities indicated that substantial technical assistance was needed to improve PNG’s capacity [for] enforcement….” [Footnotes deleted]

(Source: WTO document WT/TPR/S/239, 12 October 2010.)

For the unsophisticated copyright owner in PNG, this assessment may be superficial. So to put things into perspective, a sample of achievements is extrapolated from the WTO quote and discussed:

  • There is a regulation for the establishment of collective management organizations (CMOs) but this awaits issuance of a Certificate of Necessity by the PNG Department of Justice and Attorney General; (‘The Regulation’)
  • A study is examining the feasibility of establishing CMOs in PNG; (‘The Study’) and
  • Enforcement is a major problem with the increases in importation, reproduction, and sale of counterfeit and pirated goods. (‘The Enforcement Problem’)

The Regulation

The WTO review refers to a draft CMO regulation. What it fails to highlight is the fact that a Copyright Amendment Bill is also in circulation. Work to draft both the Bill and accompanying regulation commenced in 2007 at a joint World Intellectual Property Organization (WIPO) and Intellectual Property Office Papua New Guinea (IPOPNG) meeting in Port Moresby. Copies of both the Bill and Regulation were deposited by IPOPNG with the Department of Justice and Attorney General in 2010. That was almost two years ago. To date, there is no official confirmation as to whether or not the Certificate of Necessity has been issued. But generally, the Solicitor General should give a certificate after confirming the need exists for amending legislation. While there is no official reason to explain the delay, there are two possible outcomes.

The first is that, if the Solicitor General has sighted and made a decision, perhaps his view would be that there is no need for the Bill and Regulation. Such a decision would be bizarre given CMOs are special entities with monopoly powers that would need to be established under the enabling Act. A CMO cannot be established as a cooperative society or business name or incorporated association or company or partnership under current laws unless sufficient provisions are made through amending legislation. Otherwise, a CMO is a different corporate specie altogether. The second outcome would be that Ministry of Commerce and Industry, the ministry responsible for the copyright law, failed to follow the correct legislative procedure before applying for the certificate of necessity. The National Executive Council Secretariat has strict guidelines on the legislative procedure.

If the Intellectual Property Office of PNG (IPOPNG), a division of the Investment Promotion Authority (IPA) which falls under the Ministry of Commerce and Industry, did not follow the correct procedure, then the current delay may be attributed to a procedural error which stands to be corrected.

The Study

An initial meeting in Port Moresby on 21 February 2009 between PNG Performing Rights Association Incorporated (PNGPRA), and Chin H Meen (CHM) resulted in a draft terms of reference (TOR) for a study on the feasibility of a collective management organization (CMO) for the PNG music industry. Coordinated efforts in securing technical assistance were met by the Australasian Performing Right Association (APRA). APRA assisted with the development of terms of reference (which is a rationalized version based on the earlier PNGPRA-CHM draft), and commissioned two consultants   (K T Ang, and John Kenny). The consultants visited Port Moresby from 22 to 25 March 2010, and met with government agencies, statutory bodies, broadcasters, private sector and other non state actors, and stakeholders of the local music industry. The principle objective behind the study was consultation with PNG stakeholders, and drafting of a report on the establishment of a CMO.

This Ruth Choulai photo shows from (L-R) consultant KT Ang, the late Tony Soru Subam of PNGPRA, and APRA’s Matthew Fackrell during a break in one of the study meetings held on 25 March 2010 at the Port Moresby Holiday Inn.

 A draft report has been in circulation since February 2011. It was released by email to selected recipients to read and provide comments. However, failure by respondents to provide timely feedback has forced report authors to delay its release. According to the report, the study found that a small but feasible market exists and recommended for the creation of a CMO to collectively administer the rights in musical works in Papua New Guinea. The National Government, through IPOPNG, has a copy of the draft report. But there is no indication as to what will become of it.

To understand the move to legislate, it becomes necessary to grasp the concept of a CMO from here onwards. The August 2007 edition of WIPO publication The Arts and Copyright is a good start. It defines a collective management organization as:

“An organization that helps authors, performers, producers of phonograms, and/or broadcasters manage their rights. It collects payments from users and distributes it to the right holders.”

In addition, an online information sheet downloaded from the Arts Law Centre of Australia website titled “Managing Your Copyright by Joining a Collecting Society” refers to the function of CMOs in this way:

[CMOs] collect royalties on behalf of their members. Their members are artists, authors, musicians and others who own copyright in works (such as music, lyrics, visual art and literature) or other copyright material (such as sound recordings, films, and television broadcasts). They may also be visual artists entitled to resale royalties in respect of their visual artworks.”

The same information sheet also lists Australian CMO examples:

  • Music, lyrics, sound recordings and music videos

- Australasian Mechanical Copyright Owners’ Society Limited
– APRA – Australasian Performing Right Association
– PPCA – Phonographic Performance Company of Australia
– CCLI – Christian Copyright Licensing International
– licenSing
– Word of Life International

  • Visual arts

- CAL – Copyright Agency Limited
– Viscopy
– Aboriginal Artists Agency

  • Film

- Screenrights
– ASDACS – Australian Screen Directors Authorship Collecting Society
– AWGACS – Australian Writers’ Guild Authorship Collecting Society Ltd

  • Literature (including illustrations and images accompanying text)

- CAL – Copyright Agency Limited

So in a sense, a CMO is a legal entity that links both the copyright owner and user so that copyright transactions are done in the spirit of international and domestic copyright laws. The structure of CMOs given by the Australian example shows that different CMOs exist to administer rights and royalties in respect of specific rights groups. In PNG there is no equivalent. We need pioneering CMO legislation in order have the legal basis for a similar structure.

While the National Government ponders on a decision to introduce CMO legislation, it can be said that APRA has filled in by default as CMO. APRA entered the picture only after PNG-based composers and lyricists exercised a legal right to join the APRA membership. The significance of APRA membership stems from transfer of the public performance right to APRA, which is an economic right provided for by section 6(h) of the 2000 Act. Legal transfer of the right allows APRA to become its proprietary owner and enter into licensing arrangements with users in its territory, including PNG. For a Papua New Guinean citizen that is an APRA member already, earning broadcasting royalties for the airplay of his or her songs on PNG airwaves is nothing new. Patti Potts Doi has been a member since 2008, and only received his most recent APRA royalty payment in 2011. On the flipside, the only copyright user in PNG that pays APRA’s annual licensing fee for the right to broadcast APRA-administered songs is PNGFM. So it is arguable that Patti’s royalty is derived from the PNGFM fee. Other commercial radio stations like FM100, FM Central, and KaraiFM, for instance, are not APRA licensees. So people like Patti do not receive royalties although these radio stations play his songs regularly. So is absence of CMO legislation the only reason why PNG remains a blind spot to both domestic copyright users and international CMOs? That is unclear. But the draft report seems to assume this to be the case. For instance, complementary to a CMO setup, the following actions have also been recommended:

  • Transfer of existing APRA members and subrogation of existing licenses;
  • Licensing;
  • Accession to international copyright conventions;
  • Training of directors and staff of new CMO;
  • Targeted public awareness building programme; and
  • Government to take lead in paying copyright royalties.

In relation to the ‘Accession to international copyright conventions’ recommendation, the draft report stated that:

“To enable the CMO to operate efficiently, it is crucial for the PNG government to accede to the Berne Convention and the WIPO treaties”.

Section 3 (4) and Section 32 of the 2000 Act extend protection to works of Treaty countries. But the fact that PNG is not a signatory to both the Berne Convention and the WIPO treaties means it cannot extend protection to works of Treaty countries. It also means that Treaty countries cannot reciprocate the same protection for PNG works. This seems to be the main difference between Australia and PNG because while Australia is a party to the Berne Convention, PNG is not. This may explain the reason for APRA’s impotency to enforce copyright in PNG on behalf of its members (some of which are PNG nationals). As APRA is an Australian corporation, its right cannot be enforced in PNG except through an international copyright treaty in which both Australia and PNG are member countries.

The Enforcement Problem

In November 2011, music industry concerns at the impact of piracy culminated in the hosting of a one-day meeting in Port Moresby. Hosted by Director General of the Office of Tourism, Arts, and Culture (OTAC), representatives from Chin H Meen, MS Wagambie Lawyers, PNG Customs, Censorship Board, Department of Prime Minister & NEC, and the Institute of PNG Studies consulted each other on the contents of a draft Terms of Reference (TOR) document outlining the “Copyright Task Force” concept.

The meeting had set out to draft a final TOR document by day’s end. But this failed to eventuate because TOR contents generated unresolved issues forcing OTAC to propose a February 2012 meeting to finalize the TOR. OTAC expects the TOR to be converted into a policy submission which the Minister for Culture & Tourism can present before Cabinet seeking an executive government decision to mandate set up of the Copyright Task Force.

The Copyright Task Force concept sounds similar to the current Investigation Task Force Sweep, led by senior PNG Government lawyer Sam Koim, which combats corruption in PNG. If it is approved by the National Government, the Copyright Task Force concept will also boast State enforcement agencies that share resources and enabling legislation in the fight against piracy. The concept is well-intentioned. But we need a comprehensive response. Perhaps what the National Government needs to do is to commission a scoping study into piracy, counterfeit, and peer-to-peer file sharing (i.e. sharing of files text, music and/or video files through the internet or remote computers). Based on study findings, strategies can be developed to address these issues. The Copyright Task Force could be one such strategy. In a sense, the Copyright Task Force concept is premature. Of course, there is enabling legislation to search and arrest perpetrators. But in recent newspaper reports, PNG police have been unable for some reason to prosecute perpetrators effectively from the moment pirated and counterfeited material is confiscated. Could this be a jurisdiction problem? If it is, then it is imperative that our copyright law provides criminal offences, i.e. strict liability, summary, and indictable offences dealing with piracy, counterfeiting, and peer-to-peer file sharing activities. This is necessary for law enforcement agencies to be mandated to enforce spot fines, or prosecute dealers of piracy and counterfeiting products. If there are insufficient or non-existent laws, we should pass the necessary amending or principle legislation. The Australian copyright law is a good comparative source. In addition, our police prosecutors, judges, and magistrates might not be equipped to deal efficiently with copyright offenders. This is a training problem and one that the National Government needs technical assistance. Perhaps PNG should look no further than Australia for assistance.

There is also another non-enforcement proposal. The introduction by parliament of a compulsory tax on blank media (cassettes, compact discs, mp3 and mp4 drives) and recording equipment in PNG could be the single biggest anti-piracy initiative. France has a similar tax in place. But like all taxation initiatives, there is expected to be much uproar from importers, wholesalers, and retailers of blank media and recording equipment. Both policymakers and legislators will have to contend with a dilemma in which the introduction of a blanket tax has the potential to prejudice both legal and illegal users of copyright. Legal users will cry foul. Nevertheless, if PNG chooses to adopt this taxation measure, a CMO seems to be the logical entity to receive and distribute revenue collected from a blank media and recording equipment tax.

Conclusion

The 2000 Act was ushered in with much vigour but seems to have run out of steam. Both legislative and policy initiatives, although important, have failed to go the full distance. The drafting and promotion of CMO legislation by IPOPNG may be seen in this light. In terms of the Copyright Task Force concept, it is rather indicative of haphazard policymaking. The concept should be preceded by a comprehensive study; one that should provide a set of legislative proposals to create or bolster enforcement mechanisms. In this context, an option exists for the Minister for Commerce and Industry to commission a consultant to study effects of domestic peer-to-peer file sharing, piracy, and counterfeiting activities, make findings and suggest policy recommendations. There really is much to achieve before the twentieth anniversary.

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