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Waiariki Sets Copyright Record Straight

3 June 2005

Waiariki Sets Copyright Record Straight

Recent claims that Waiariki was “fined” for copyright breaches and “forced to pay legal costs and copyright licenses” to Copyright Licensing Limited (CLL) are just not true, says Dr Reynold Macpherson, CEO at Waiariki.

“We reached an out-of-court settlement with CLL. We were not fined. We were not forced to pay anything. But they are now using the agreement to try to bully other educational institutions into accepting their monopoly,” said Dr Macpherson. “Institutions have a choice, protected by law.”

Waiariki exercised that choice in 2003, when they had to reduce costs sharply to remain viable and to sustain the delivery of its programmes to the community. It withdrew from the licensing scheme as a business decision. “We did our best to comply with the 3% limit,” said Dr Macpherson. “We ran workshops, put notices up at photocopiers, and took all practicable steps to stay within the law. CLL sent us threatening letters, promising no further trouble if we did signed up again. We ignored them and saved heaps.”

CLL then hired a private detective to collect evidence at Waiariki, said Dr Macpherson. The detective offered students $100 each to copy their teaching materials. About ten examples were found where copying exceeded 3%. The most extreme was about 40% and the staff member involved left Waiariki late last year.

CLL then went to the High Court and sought an injunction to stop all copying at Waiariki on the grounds of flagrant violations. The Court directed out of court consultations. CLL argued that the evidence pointed to a flagrant disregard of the law and sought costs, damages, additional damages, and compensation for all missed and current licenses. Waiariki argued that they had made reasonable efforts to achieve 3%, that the decision was not immoral and legal, and a sensible business decision in difficult circumstances. They asked for a week to consider their position.

Waiariki used the week to survey its eight Schools and found poor compliance in two, near compliance in three, and that the other three were inside the 3% limit. These findings undermined CLL’s claims for additional costs based on flagrancy. With any High Court hearing clearly some months away, it also gave Waiariki ample opportunity to fully achieve 3% compliance.

“Since CLL’s objective was to get us back into the fold, monopoly compliant, we offered to split the difference. That meant only $7K in costs and rejoining the scheme at the standard rates for 2005 and 2006, with full retrospective coverage for up to 10% copying. We wanted the 10% limit for better teaching purposes and could afford to pay. They also agreed to help run compliance workshops at no cost to us. They agreed. No fines. Nothing forced. All we forgot to do was to put a confidentiality clause in the agreement,” says Dr Macpherson.

“As soon as Waiariki had paid up”, Dr Macpherson said, “CLL turned on us. They mounted a national threat campaign by media, warning schools that they are going to be targeted next, citing Waiariki. They have just offered money to students at another polytechnic outside the monopoly to participate in ‘market research’. Smells UnKiwi.”


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