Hon Christopher Finlayson

CHRISTOPHER FINLAYSON (National) : I will direct my comments this morning to Supplementary Order Paper 246, proposed by Judith Tizard, the Associate Minister for Arts, Culture and Heritage, in the House last night. In my second reading speech I explained why, following a visit to the Government Administration Committee by Sir Geoffrey Palmer, it was thought fit to include in the interpretation clause some definitions that were regarded as very important. The first is “author”, the second is “book”, and the third is “New Zealand author”. I will now analyse those definitions briefly.

I forwarded to the Minister a couple of comments that have been made to me, and I will now record some of those questions and perhaps get some answers to them. The first definition is that of “author”. Everyone recognises, of course, that for the purposes of this scheme an author has to be a natural person. But I have a couple of questions about subclauses (6), (7), and (8) of new clause 4A, which is proposed to be inserted in the bill by Supplementary Order Paper 246.

Subclause (6) states: “ ‘Author’ does not include a person who writes or illustrates a book as part of his or her duties under a contract of service or a contract for services.” This phrase seems to catch both employees and those commissioned. That seems to be the case even if, as is the case with academics, copyright for the work remains with the author. I am not quite clear whether the intention is to cover books that are written after the conclusion of a publishing contract. It seems to me that authors who wish to benefit from the scheme ought to be clear that the publishing contract they sign is expressly not a contract for service.

Subclauses (7) and (8) state: “ ‘Author’ does not include a person who receives payment for writing or illustrating a book wholly by way of a fee.” and “ ‘Author’ does not include a person who paid a third party to publish the person’s book.” Looking at it from a first-principles basis and not from the point of view that that is what is in the scheme already, I have difficulties working out why both those categories of person are excluded. Surely how the author is paid or whether he or she has contributed to publication costs will be irrelevant if the book proves popular in New Zealand libraries.

Let us take this hypothetical situation. A person may have difficulty getting his or her book published, so the person self-publishes, and the book then turns out to be very popular. It is sold in bookshops around the town and becomes very popular in New Zealand libraries. Looking at it from a point of principle, I ask why that person should be denied access to the benefits of the public lending right. I know the immediate answer is that that is not what the scheme currently provides. That is all very well; I acknowledge that. But looking at it from a first-principles basis, I ask why those people are not included, given that this is the time to review the public lending right scheme.

The second definition is “book”. The first clarification made in new clause 4B is that “ ‘Book’ means a publication that—(a) is listed in the national bibliographic database of the National Library of New Zealand …”. There are certain exceptions. There is a curious exclusion in new clause 4B(3) of “a text book intended for use in schools.” Those types of books are not included.

But let us take this hypothetical situation. Someone writes a book—for instance, Owen Marshall: Selected Stories, edited by Vincent O’Sullivan. It proves to be very popular in our shops and is regarded as the locus classicus of short stories in New Zealand, and it becomes the standard text for year 13 English students. It is used as a textbook. Therefore, why would that book be necessarily excluded?

Perhaps the hypothetical situation is slightly off-key, because the Supplementary Order Paper states “intended for use in schools.” What does that phrase mean? Maybe when the author was writing it he intended that ultimately it would be for use in schools. Those are just a couple of the questions I have on the definitions of both “author” and “book”.

New clause 4C defines a “New Zealand author” as “an author who—(a) is a New Zealand resident as defined in … the Income Tax Act 2007;” and who also satisfies certain other conditions. I have less of a problem with this definition, although it has been pointed out to me that there is an issue with what to do about expatriate writers. Someone who goes to live in Menton under the residency that is made available for authors and decides to stay there and continue writing for 4 or 5 years presumably does not qualify in terms of the Income Tax Act as a “New Zealand author”, but is still very much a New Zealander. I mentioned Katherine Mansfield as a hypothetical expatriate writer, and the Minister’s advisers said very helpfully that Katherine Mansfield is, of course, dead. I was most grateful for that information. I had not realised it! One can see hypothetically that an issue could arise, so I would be grateful for some guidance on that.

In the course of preparing for this debate I brought down to the Chamber a couple of books that I am reading at the moment. I started with the doyen of short stories in New Zealand, Owen Marshall, who has written a splendid text. But I just notice—and I would be grateful for the Minister’s guidance on it—that copyright in this text is actually held by two people. The introduction and the selection are by Vincent O’Sullivan, and the stories themselves are by Owen Marshall. This book currently qualifies for a payment under the Authors’ Fund and will qualify, one would hope, under the new regime that is being established. One works out that payments ought to be made to the author, but how does one sort out in a situation like this one, where there are two authors—Vincent O’Sullivan for the introduction and Owen Marshall for the substantive part of the book—who is to get what and in what proportions?

Of course, it is much easier with another book I am reading, My Father’s Shadow: A Portrait of Justice Peter Mahon by Sam Mahon. That case is quite easy, because he is a New Zealand author and, therefore, qualifies, and he is the only person who holds the copyright. If his book qualifies, then so be it.

To illustrate the principle of what would not qualify, the third book is a book written by the former British Foreign Secretary David Owen. It is called In Sickness and in Power. Members may know that when the Labour Party in England went crazy in the late 1970s and early 1980s, David Owen went off and formed the Social Democratic Party. Mr Barnett looks up; I think he was an active member in the Social Democratic Party. But anyway, at the conclusion of his time David Owen looked back and wrote a book called In Sickness and in Power. It is a very interesting book, and I recommend it to Mr Barnett when he is flying back to England. In fact, I may even give him my copy, because I think it would be good for him to read it.

As David Owen says, it has been observed for centuries that something happens to people’s mental stability when they are in power. The causal link between holding power and aberrant behaviour that has the whiff of mental instability about it was captured by Bertrand Russell’s phrase “the intoxication of power”. David Owen says that power is a heady drug, which not every political leader has the necessary rooted character to counteract: a combination of common sense, humour, decency, scepticism, and even cynicism. He then starts talking about hubris.

I think I may give this book to Mr Barnett as a farewell present, because I can certainly pick up another one from Parsons later on. But there is an example of a book that does not qualify, because it is not by a New Zealand author. It would not be entitled to payments under the public lending right scheme.

So I have some questions for the Minister, as to the definitions of both “author” and “book”, and I think we ought to touch on—albeit briefly—the definition of “New Zealand author”. When one is dealing with this legislation on a first-principles basis, I do not think it is enough to say: “Oh well, these matters are already included in the guidelines for the New Zealand Authors’ Fund. To broaden the definitions would extend the scheme to more titles and authors.” I think that is a pragmatic answer but not a principled answer, so I would be most grateful for the Minister’s comments.