TelstraClear has pulled the rug from under efforts to implement New Zealand's controversial new copyright law.
The telco has told the Telecommunications Carriers' Forum (TCF) and a working party trying to thrash out a draft code to implement section 92A of the Copyright (New Technologies) Amendment Act that it no longer supports the effort.
The move could effectively derail negotiations as the TCF board needs a unanimous decision to ratify the working party's recommendation on the code, according to TelstraClear spokesman Chris Mirams.
Section 92A, which requires ISPs to have a policy of disconnection in place for repeat infringers of copyright online, has been the focus of protests over the last few months.
The code will not solve copyright issues, says Mirams.
"It is not our role to make bad legislation work," he says. "The industry had no input into section 92A. [The draft code] is bad for our customers. Customers and businesses have spoken via blogs and petitions and also directly to us. We have listened and we have agreed."
Last week, Prime Minister John Key stepped into the controversy delaying implementation of S92A to allow more time for the code to be negotiated. He said if the parties could not reach agreement the section would be suspended.
However, he also said international trade commitments require New Zealand to have copyright protections in place.
Ralph Chivers, CEO of the TCF, says as a result of TelstraClear's move, the TCF will not be able to complete an endorsed code. For a measure to be approved, members have to vote in favour of it or abstain, he explains.
However, Chivers says the working party will continue developing the document.
"There is still a significant majority of members in favour of continuing the work," he says. People will be able to use the document "as they see fit".
TelstraClear's submission on the code, dated March 6, outlines the company's position more fully.
"The TCF was set up to work primarily on issues exclusive to telecommunications carriers, not the highly controversial area of copyright enforcement," it says. "lt is perhaps unfortunate that the possibility of the TCF developing a code has taken on more significance than is, in TelstraClear's view, warranted. As previously noted, the legislation does not contemplate any such code and at the end of the day the TCF does not represent ISPs, either in the usual sense of the term, or in the wider way that the term is defined in the Act."
InternetNZ says TelstraClear's decision not to support the code means the government should promptly repeal Section 92A.
"It is clear that the agreement that the government sought will not now be reached between ISPs and rightsholders. To attempt to bring 92A into force now would invite disaster,” InternetNZ executive director Keith Davidson says.
"The problems with the Code have come to a head because the government made the future of Section 92A dependent on agreement between a limited group of rights holders and a small number of ISPs.
“What about everyone else who is affected? Section 92A applies to any business that provides internet services to its staff or hosts a website, and can be triggered by any rights holder or claimed rights holder with a genuine complaint or a malicious axe to grind," says Davidson.
Davidson says the TCF working party’s efforts have made the best of an impossible job, and the work has not been wasted. InternetNZ will continue to contribute to developing the code, while recognising that it can no longer be implemented in the way that was expected.
Telecommunications Users' Association boss Ernie Newman says TUANZ agrees with TelstraClear that the law is flawed.
“The position they have taken is very principled. It genuinely reflects concern that any code adopted by the TCF could effectively close off options for the industry’s customers who are owners of business networks, and our members will welcome that concern.
“At the same time TUANZ recognizes the frustration this development will mean for the many people within and around the TCF who have tried very hard to get a code together despite knowing they were dealing with very poor legislation."
Newman says the government should now step into the debate, either by revising Section 92a, or by taking a lead towards a new process under which "all parties can live - rights holders, ISPs, business end users and individuals".