The ‘largest party’ argument

Although The Standard has just lost stalwart author Anthony Robins they have gained another, Matthew Whitehead, who has previously commented there and has had the occasional guest post. While he is openly a Green supporter he will provide some good input at The Standard.

His first post is an intteresting Critiquing A Modest National Party Proposal

I’m going to be focusing on the suggestion, floating around National Party supporters on social media, that the largest party (“plurality winner” is the technical term for being largest without necessarily winning a majority) after an election should have some enshrined constitutional right at the first shot to form the government offered to them by the Governor General.

The obvious first thing to discuss here is that such an arrangement would favour National forming the government except in the most Labour-slanted circumstances, as right-wing votes tend to be much more concentrated towards the largest party when they feel like National is doing well, making them the most significant beneficiaries of the “come back to mother-ship” effect that both of the two largest parties benefited from this election.

Under the current mix of parties it may favour National but that situation may change. Obviously Labour were the biggest party when they were able to form the Government in 1999, 2002 and 2005.

Given that it is almost exclusively National supporters suggesting this change, we should probably fall back on the principle of electoral reform’s purpose not being to outright advantage any particular party, and count this as a strike against the idea.

That’s silly. Of course National supporters will be dwelling on why they lost power and the process that led to Winston peters decision to go with Labour, while Labour, NZ First and Green supporters are more likely to be rejoicing and looking forward to the new term. That’s not a good reason to “count this as a strike against the idea”.

…it’s simply a constraint on freedom of association for minor parties. It goes against democratic principles and constrains political speech to have our head of state direct coalition talks, and it rules out parallel talks which are simply more efficient and leave the country waiting less time.

It’s not necessarily restraining small parties from associating. It could be a simple guide to beginning negotiations.

It would have been useful for the Greens to officially rule out dealing with National up front in the recent process. But perhaps all parties should make it clear before the election what they would consider to properly inform voters.

It might not be a bad idea for parties to agree to some fair norms around coalition talks and Parliamentary reforms, but I think that’s a discussion that needs to be had on a more consensus basis between our four largest parties.

Why just between our four largest parties? That doesn’t sound very democratic. It should involve all parties in Parliament, any parties not in Parliament that wish to have a say, and the public.

If Greens had missed making the threshold I doubt that Whitehead would be suggesting “a more consensus basis between our three largest parties”.

Overall failing on every major point, this idea seems to be a non-starter, and is instead perhaps intended as just another front for National to attack MMP on, after it has tried and failed twice to defeat it at the ballot box- if they succeed in getting the measure through, they slow down and make coalition talks far less popular.

Questioning whether our current way of doing MMP could be improved is an important democratic process. Dissing it as “just another front for National to attack MMP” could be described as just another front to attack an idea Whitehead doesn’t favour.

They need to instead move on and accept that they can’t rely on strong plurality results to govern without eating up the electorate-based parties that support them, and perhaps even consider splitting into multiple parties themselves for more differentiated campaigning, as National has always been an informal coalition of urban right-wing liberals, right-wing conservatives, and a significant rural support base of many ideological flavours, and arguably could earn more of the Party vote under MMP by campaigning separately to each group.

But that might require them modernizing, an idea which is always deeply unpopular with the National Party, who still have no direct democratic impact on important decisions like electing leaders.

“An idea which is always deeply unpopular with the National Party” – that’s a ridiculous claim and hints at Green arrogance. It’s possible for parties to modernise without being just like the Greens. It would be alarming if parties didn’t modernise in their own ways.

A party in power for none years is always going to tend towards sticking to what succeeded, as long as it works.

I’m sure if Steven Joyce remains he will modernise his campaign strategies, but he is unlikely to favour a modern kamikaze attempt to outmanoeuvre their MoU partner party leading into the campaign, like Metiria Turei and the Greens did. They came close to not being one of the largest parties in Parliament.

Whitehead will no doubt be happy with the outcome of the election and how that came about. But the situation could be quite different after the next election, as it has been after each of our eight MMP elections. It could be the Greens that fall apart as a small party in Government.

Considering whether we can do our democracy better should be encouraged, not blown away because what is being suggested wouldn’t have suited your favoured party’s current situation.

We have just seen a situation where three parties stood back, allowing one small party dictate how negotiations would be conducted, and putting themselves in a position where they made the key decision and the key announcement.

Surely there is a better way of doing things, the public tends to not like tails calling the shots while the dogs cower.

We don’t need hard and fast rules, but if we had accepted guidelines (arrived at by consensus of course) for how post-election negotiations and decisions are made I think the public and the media would be happier with the process of forming a government.

Eight Mile Style v National Party

A summary of the copyright case Eight Mile Style v National Party was released today.

The Court found Eight Mile Style is entitled to damages on a “user principle” basis in the
sum of NZ$600,000, with interest, from 28 June 2014.

The National party have indicted they will make a claim against the supplier of the music they used.


What the case is about

The key issue for determination by the Court was whether a “sound-alike” production track, called Eminem Esque, used by the National Party in its 2014 election campaign advertising, is sufficiently similar to the 2002 music of Eminem’s hit song, Lose Yourself, so as to constitute a breach of copyright.

Lose Yourself was composed by Marshall Mathers III (Eminem), Jeffrey Bass and Luis Resto (all called Eight Mile Style) in 2002. The composition is regarded by Eight Mile Style as the most valuable work in their catalogue and has only rarely been licensed for use, and never as part of a political campaign.

Eight Mile Style, who own the copyright in Lose Yourself, sought damages against the
National Party after Eminem Esque featured in Party advertisements played on television, the internet and at a Party conference in the lead up to the 2014 election. Between 20 to 30 August 2014, the advertisements, with Eminem Esque synchronised to them, were played 186 times on New Zealand television. Eminem Esque was also played eight times during a 15 minute opening broadcast on TV1, occurring on 23 August 2014.

This proceeding is being heard in two parts. The first, a hearing to determine the liability of the National Party and the quantum of damages, if any, was held in the High Court at
Wellington over eight days between 1 May and 12 May 2017. The second part concerns a
separate hearing to determine third party liability, if any.

This decision deals with the first hearing only, namely, the issues of liability and quantum against the National Party as the alleged publishers of the infringing work. The third-party liability hearing awaits the outcome of this trial.

The Court’s key rulings

Is Lose Yourself an original work capable of protection under the Act and were the
elements of Lose Yourself referenced in Eminem Esque also original?

The Court found that copyright does subsist in the musical work Lose Yourself as it meets the definition and low threshold of being an original work under the Act.

Although Lose Yourself met the low threshold of an original work under the Act, the Court was also required to determine how original the work is and whether there are features in the work that are not original. To establish infringement, there must be substantial copying of the original parts of the work. Any copying of a part of the work, which by itself has no originality, will not normally be protected.

Cull J found Lose Yourself also met the higher threshold of an original work in the case law. Her Honour concluded:

[154] The distinctive sound of Lose Yourself is not limited by a “melodic” line, but is a
combination of the other instruments, particularly the guitar riff, the timbre, the strong hypnotic rhythm and the recurring violin instrumentation and the piano figure. It is no coincidence that Lose Yourself received the 2003 Academy Award for Best Original Song. I find that Lose Yourself is a highly original work.

Was there copying of Lose Yourself?

The Court found Eminem Esque was a copy of Lose Yourself for three reasons.

First, Cull J determined Eminem Esque has substantially copied Lose Yourself. The
differences between the two works are minimal; the close similarities and the indiscernible differences in drum beat, the “melodic line” and the piano figures, make Eminem Esque strikingly similar to Lose Yourself. Eminem Esque substantially reproduces the essence of Lose Yourself. The parts of Eminem Esque used in the National Party’s campaign advertisements also substantially reproduce Lose Yourself.

Second, Eminem Esque is objectively similar to Lose Yourself as there are minimal
discernible differences. The inquiry into objective similarity is a test of hearing and ear recognition; Eminem Esque sounds like a copy and is a copy of Lose Yourself. Eminem Esque was designed to “sound like” Eminem and Lose Yourself as production music and a sound-alike track.

Finally, there is a causal connection between Lose Yourself and Eminem Esque. It was no
coincidence that the works sounded the same and the undeniable inference to be drawn from the evidence is that the composer of Eminem Esque had Lose Yourself in front of him at the time of composition. The similarities between the works overwhelmingly support a finding of copying. The original title Eminem_abbr; the title of Eminem Esque; and the fact that Eminem Esque is a sound-alike track, reinforces the finding that there is a causal connection between the two works, supporting a finding of copying.

Did the copying constitute a breach of the Act?

The Court found the National Party committed three restricted acts amounting to copyright infringement.

The National Party communicated a copy of Lose Yourself to the public without licence;
authorised the copying of Lose Yourself; and authorised the use and/or deployment of the relevant advertisements and opening broadcast.

Was Eight Mile Style entitled to damages?

The Court found Eight Mile Style is entitled to damages on a “user principle” basis in the
sum of NZ$600,000, with interest, from 28 June 2014.

This sum was determined under the user principle, being the hypothetical licence fee that would reasonably have been charged for permission to use a copy of Lose Yourself in the National Party’s campaign advertising.

The relevant factors considered in assessing this hypothetical licence fee included that Eight Mile Style have retained exclusive control of licensing and rarely grant permission to use Lose Yourself in advertising; the purpose for use in the present case was political use in an unassociated country, which is not what Eminem or Eight Mile Style would endorse; the use was confined over 11 days, with 186 television viewings, as well as being uploaded to the internet; and the National Party wanted the sound of Lose Yourself or an equivalent.

Although copyright infringement did occur, the National Party’s actions were taken after
receiving professional, commercial and media advice and were not reckless or contumelious of the rights of the copyright owner. No additional damages are awarded.


Media Release

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document.

Full Judgment

This judgment of the High Court includes links to audio and video files that were adduced in evidence by the parties during the hearings. They are made available to assist in understanding the judgment. The re-use, capture, storage, re-editing or redistribution of this footage in any form is not permitted.

 

 

National’s education policy

National launched their campaign today and also announced their education policy.

$379m package to prepare our children for the future

National will provide New Zealand’s young people with the skills and language training to succeed in a globally-connected, high-tech world, Prime Minister and National Party Leader Bill English says.

The next National-led Government will invest $379 million to provide school students with stronger maths, technology and languages skills, as well as updating National Standards to give parents and teachers better information about how students are performing and where they need more support.

“Now that the government books are in surplus, we want to invest more to help our young people embrace the tremendous opportunities New Zealand has through the next fifty years,” Mr English says.

“Opportunities from new technology, new ideas and ways of working, and stronger international connections.

“Nothing can replace the thousands of motivated, professional teachers. But we can improve the tools they use and the support we give them to lift educational standards.”

National will roll out a four-point education package to:

  • Provide every primary school student the opportunity to learn a second language
  • Improve the maths skills of primary school students by upskilling teachers, providing additional classroom resources like digital apps, and delivering intensive support for students who need it
  • Create Digital Academies and Digital Internships to give year 12 and 13 students practical, work-based learning opportunities that are a springboard into careers in the IT sector
  • Extend National Standards to provide much more detailed information about how our kids are progressing right throughout the year – information that can be accessed immediately online by children and their parents

“National Standards provides a valuable snap-shot of how your child has performed across the year,” Mr English says.

“National Standards Plus will build on this by allowing you to track your child’s progress in more detail, online, as it happens.

“I want our children to be confident about their future, open to the world and ambitious for themselves and for our country.

“Our teachers and schools work so hard to create opportunities for our children and these measures will further help more of our kids reach their potential,” Mr English says.

The new funding is made up of $354 million of ongoing funding over four years, plus a $25 million one-off investment in systems to extend National Standards.

Nikki Kaye is Minister of Education so is likely to have played a part in this, probably an attempt to show that National can come up with innovation from relatively young female MPs to compete or contrast with Ardern.

Patrick Gower thinks this is a good move: Bill English goes with blinder idea rather than bribe

Bill English has played a blinder by coming up with a policy to give all Kiwi kids the chance to learn a second language.

Who saw it coming? It is original, it is ambitious, it is symbolic – and at $160 million it doesn’t cost that much.

It is not compulsory – kids can learn Te Reo, French or Mandarin if they want under National’s policy.

It will be very appealing to parents – and as a pitch to those crucial centre  voters, it is a blinder of an idea.

It is there to show that Bill English is not just about the economy and that he is not out of ideas.

It fits with National’s brand that it is open to the world.

Coupled with National’s other plans to enhance digital learning and improve National Standards it creates a good wedge with Labour, which announced its education policy weeks ago under Andrew Little to little fanfare. Labour is also tied to the unions when it comes to policy and wants to scrap National Standards.

So instead of a bribe it is a blinder of an idea by Bill English.

Bold education policy is certainly outside the normal big ideas box from National. Whether it will appeal to voters or not is another story, and we won’t know the end of the story for another month or so.

National Party campaign launch

National have made sure they have showed that Bill English can pull a crowd with a big campaign launch today.

Stuff:  National launches official campaign with $379 million education bid

National has officially opened its election campaign to chaotic and noisy scenes as thousands of supporters crammed a West Auckland stadium.

English said National had always known the election would be close. It was now a clear choice for voters.

“National’s plan is to keep New Zealand moving forward – a confident plan for a confident country,” he told supporters.

“A strong National team energised by new ideas. A team that’s open to trade, open to investment, and knows how an economy works.

“Or an unstable, untested group on the left that would risk it all with unpredictable and unclear policies.”

Text: Bill English’s campaign launch speech.

Q+A: Steven Joyce and National’s campaign

Q+A this morning: “Our political editor Corin Dann talks to the National Party campaign manager Steven Joyce about how National will respond to Labour’s rise in the polls.”

On Ohariu – Joyce says they have been doing numbers there too and it’s closer but he said Dunne has it all ahead of him. he gives a big plug for Dunne due to his contribution to stability in government.

He makes the point that voting choices tend to be made quite late in key electorates involving large amounts of tactical voting.

Joyce downplays the strength of Winston peters and New Zealand First.

He concedes that National are about 3% shy of where they want to be, confirming recent public polls that have National in the mid forties.

On the Jacinda effect? No more worried than in any election. Elections are won and lost on small margins, ‘it’s slightly different’, he says similar to 2005 (in which NZ First called the coalition shots).

National’s Clutha -Southland candidate selection

National has announced it’s selection process for a candidate to replace Todd Barclay in the Clutha-Southland electorate. This is a very safe seat so is likely to be sought after by people wanting a relatively secure political career.

NZ Herald: National re-opens selections for Clutha-Southland seat

National has re-opened selections for the Clutha-Southland seat and already there are three names in the mix -including the man who unsuccessfully challenged Todd Barclay for it a few months ago.

The National Party’s Southern Region Chair Rachel Bird said nominations will close on July 18 and the candidate will be selected in August – leaving the new candidate between 4-7 weeks to campaign.

There are already three names in the mix.

Hamish Walker, 32, has confirmed he will seek the selection after standing for National in Dunedin South in 2014.

Walker has family in the electorate. Before moving back to Dunedin in 2014, he had a property management company in Auckland.

I’ve heard he may have an association with people on one side of the rift, if so he will have to manage that.

Barclay was from the electorate but had obvious difficulties dealing with established identities in the electorate (long standing staff) and with both Queenstown and Gore constituencies.

Simon Flood, an ex-Merrill Lynch investment banker, is believed to be considering it again after challenging Barclay for the seat last year.

He seems another odd option in a mostly rural electorate. Empathy and connections with high flying Queenstown are important, but so is a connection with the farming community.

Gore District Councillor Nicky Davis has also confirmed she is considering it.

She has tried before – she was a nominee when Barclay won the candidacy in 2014.

The person at the centre of the Barclay staff dispute, Glenys Dickson, is also a Gore District Councillor. Davis will need to be seen as either neutral or able to work with both sides of the bitter dispute if she wants to get support for the candidacy. She looks very much a Gore person so I don’t know how she would be seen around the largest general electorate in the country.

Whoever gets selected by National will havea lot of repair work to do in the electorate and for the party as a whole.

National’s campaign video

National Party blurb:


National launches first 2017 election video

National launched the first of its 2017 election videos at its annual conference in Wellington today.

“National will continue to strengthen the New Zealand economy under the leadership of Bill English so that we can deliver for all New Zealanders,” Campaign Chairman Steven Joyce says.

“The video, ‘Let’s Get Together’ records the progress New Zealand has made since the Global Financial Crisis and the Canterbury and Kaikoura earthquakes, and the confidence with which we face the future.”

“It’s a clear visual representation of New Zealanders’ hard work and optimism, backed by Prime Minister Bill English who shares their values and wants to see all New Zealanders succeed.

“New Zealand’s economy is doing better than many of our closest partners. It’s no accident. It’s because every day, Kiwis get up and open their businesses or get out on their farms, sell their wares to the world, create jobs and work hard and provide for their families.

“Bill English and the National-led Government are backing Kiwis to succeed. We’ll remain focused on growing the economy with our clear plan to keep delivering more for New Zealanders.

“This election, New Zealanders have a real choice between a stable, future-focused and positive Government under the strong leadership of Bill English; or a negative, inward-looking Opposition.

“This is the start of what will be a typically positive campaign from us to ask Kiwis to give us their party vote in September.”

 

 

WO: political threats against Auckland councillor

This looks like political threats at Whale Oil against Auckland City councillor Denise Lee, under the name of ‘Cameron Slater’ in Will Denise Lee suffer at List Ranking?

National candidate for Maungakiekie Denise Lee surprised everyone in National when she voted for Phil Goff’s pillow tax.

Whale Oil may still speak for some in National with particular interests but nowhere near “everyone in National”.

This was despite a lot of lobbying from National Party Board Member Alastair Bell, who was trying to ensure National candidates actually followed party policy, and listened to him.

Obviously Denise failed to do either, so there are a lot of angry people in National who can’t believe National have a candidate who basically rolls over whenever anyone puts some pressure on her.

A very ironic claim about ‘anyone’ putting pressure on Lee.

This may be just posturing from WO, but if it is accurate I think it is alarming.

Lee is an Auckland City councillor, representing and acting for the people of Auckland.

She is also a National candidate, standing for an electorate and presumably also after a party list position.

There are a number of local body politicians standing in this year’s general election. They will need to campaign for their parties, but while they are still local body politicians they need to separately do their jobs there independently of their future aspirations.

It is alarming to see what looks to me like political blackmail – Lee voted differently to what Whale Oil/Slater/whoever wanted so they are attacking her and apparently threatening her chances on the National Party list selection.

I doubt that Slater actually has much if any input into the National Party list, especially given how much he criticises and attacks the party, the Prime Minister and other ministers and MPs.

The tipline has been running hot that Alastair Bell is furious because he has been made to look like a right fool by Denise, and his clients are very, very unhappy with him.

Without corroboration or specifics “tipline has been running hot” is WO hot air. My tipline is running hot that Slater is an arse.

Who are Alistair Bell’s clients and what do they have to do with this?

So now there is talk of a plan to give Denise a very low list position so she learns quickly that you cannot defy National Party policy and expect to get away with it, even if you are from the wet or Nikki Kaye wing of the National Party.

So now there is talk of a plan by shadowy political operatives using Whale Oil to publish barely veiled threats against a city councillor and national election candidate.

And they can’t resist dissing a successful National MP and minister in the process.

Let’s see how she copes when the rumoured third party campaign, funded by angry moteliers, gets underway against her.

This looks more like the ‘dirty politics’ part of Whale Oil in action, it certainly doesn’t look like journalism.

No supported facts, just ‘rumours’. Rumour mongering and Whale Oil are not strangers. Neither are dirty politics and Slater.

This Whale Oil post has tried to present itself as representing the views of “everyone in National” and “a lot of angry people in National”.

What it shows is that Whale Oil is still being used to target and threaten sitting local body politicians and general election candidates.

And it smells dirty. Not just against Denise Lee. This may also be deliberately trying to muddy National’s election campaign. WhaleOil/Slater has been showing signs of campaigning against National for some time, and dirtiness seems to be starting to kick in.

Should Ngaro have offered his resignation?

Going by Lloyd Burr’s claims in Alfred Ngaro’s threat to Willie Jackson was worse than just a brain fart Ngaro was slow to comprehend or acknowledge the mistake he made in a National Party regional conference speech.

Alfred Ngaro’s threat that non-government organisations shouldn’t bite the hand that feeds is extraordinary.

Not just because of his complete lack of judgement, or the fact he did it on stage in front of hundreds of National Party members, or because it shows cracks in the party’s extreme culture of discipline.

It’s extraordinary because he didn’t back down from his comments until he was forced to.

It was much more than just a brain fart or a case of misspeaking.

Prime Minister Bill English and National’s campaign manager Steven Joyce were quick to activate damage control, downplaying the comments as “naive from a new minister”.

But before they could both get their hands on him and before the storm of bad PR hit, Mr Ngaro was still unapologetic when Newshub asked him to explain.

“It was actually about saying ‘look let’s be mindful about the working relationship we have’,” he told Newshub at the conference.

“It’s the context of saying that on the one hand we’re working together, and on the other hand too, if people are criticising, we just need to be mindful of that type of relationship, yep,” said Mr Ngaro.

NGOs being “mindful” of criticising the Government sounds strikingly similar to threatening them to watch what they say.

“If we’re going to have a positive partnership of working together, then it’s around having that, it’s talking about wider context but also all the things we are doing and working collectively together,” said Mr Ngaro.

“My comments was (sic) just to be mindful of the fact that if we are going to be able to have these partnerships, we’ve just got to be political, what you call sensitive, in that context, yep.”

All this was very embarrassing for National, not just the initial comments but on how Ngaro handled it. His subsequent apology was very lame too.

I’m sure Ngaro regrets what he said but this sounds like a ‘I’m sorry I got found out’ and then a switch to campaign politics sort of non-apology. It is nowhere near good enough.

Audrey Young thinks that Ngaro comments warrant the offer of a resignation

The stupidity of Alfred Ngaro’s judgment at the weekend was so gross it warranted at least his offer of a resignation from the cabinet to Prime Minister Bill English.

None was forthcoming, English confirmed at his post cabinet press conference.

But it was clear from English’s response that he was not looking for a resignation from Ngaro.

That may be because it would have signalled a misjudgment on English’s part in having promoted him in December from the backbench into cabinet.

English did admit, however, that Ngaro had apologised to the cabinet, adding to a long list of groups to which he has apologised.

I haven’t seen a decent apology yet – and this lack of an adequate response is as bad as the initial comments which sounded like insidious political threats.

The biggest reason English has been so forgiving of Ngaro is that he does not believe the junior minister would have followed through on his threat – and there is no evidence of it.

Ngaro has not yet had the opportunity to walk the way he talked. As a new minister, and Associate Minister for Social Housing, his work and decisions are closely watched by Social Housing Minister Amy Adams.

He would not get away with it.

Ngaro’s comments smack of an inexperienced minister trying to sound as though he was an experienced political operator by talking tough.

He showed the complete opposite.

It’s ironic that an inexperienced minister has portrayed his party as arrogantly misusing power after nine years of government.

Losing yourself in Kashmir

I have no idea how the Eminem v National Party court case will end up. There’s possible doubt over whether National is liable or if they didn’t protect themselves sufficiently in the deal they signed for the supply of the track they used on their 2014 election advertisement.

I think Team Eminem claims something like $1 million value in the rights to use Losing Yourself, but they would never have agreed to National using it so isn’t that zero value?

All music is derived. It’s widely acknowledged that a lot of bits of music were ‘borrowed’ from existing songs. It must be very difficult coming up with something distinctly different.

It has been claimed in court today that Eminem’s Losing Yourself had similarities to Led Zeppelin’s Kashmir.

Not too similar?

Is this the original soundtrack used in National’s advert? It sounds similarish but different.