'Termination' questioned in new copyright law

New Zealand lives in hope as the shadow of ACTA hangs over new law

The format of the Copyright (Infringing File Sharing) Amendment Bill largely reflects the scheme proposed last year, but internet users remain uncomfortable with vague definitions in the law, especially around what is meantr by account "termination".

The bill aims to discourage illegal online trading and sharing of files, while not imposing on consumers’ access to the internet.

As expected, the Bill retains the ultimate penalty of terminating a repeat offender’s internet account for six months. This will be only after a graduated series of detection, warning and enforcement notices have been sent in respect of successive infringements and after the involvement of first the Copyright Tribunal and then a District Court.

However, some terms remain inadequately defined, say local internet users; in particular there is no explicit interpretation of the vital phrase “termination of the account”. It may mean termination of all services, or simply of services relevant to the offence.

If the user has data hosted with the ISP separately from their day-to-day internet access, complete termination may penalise the ISP with loss of business irrelevant to the offending, they point out.

Definition of what it means to be an internet service provider has been tightened up to eliminate organisations and families who let several users access the same internet link. In fact there are two definitions. The definition in Section 92 – replacing the controversial s92A in the original amendment bill, whose enforcement was postponed – describes what an ISP does for “safe harbour” protection.

These provisions ensure the ISP is not held responsible for the file-downloading actions of its users, provided it abides by the regime of delivering and keeping track of notices of alleged infringements.

The second definition, in s122, which sets out the detailed procedures for serving of notices, defines ISP in a slightly different way, in particular stipulating that an ISP charges its customers for the transmission of “material of the user’s choosing”. This, commentators in the internet community point out, leaves potential loopholes for an ISP to charge the customer for other services, such as data hosting or telephone service and throw in the transmission of daily traffic theoretically free. This might excuse it from its obligations.

However, others counsel that it is best not to encourage creative exploitation of loopholes, for fear of bringing down stronger measures like those of the original s92A that the ISP community averted last year.

Section 122 also excludes from the definition of ISP those providing services for “transient users”, a provision clearly meant to exclude hotels, operators of wireless hot-spots and potentially operators of metropolitan area networks like Citynet. Again, say commentators, it is difficult to see who is excluded by this provision.

The regulatory impact statement attached to the Bill refers to consistency of proceedings internationally for deterring illegal file-sharing and explicitly ties the sufficiency of the proposed legislation to the requirements of the controversial Anti-Counterfeiting Trade Agreement, currently under negotiation and potential free trade agreements with Korea and Pacific countries including the US.

The statement implies a hope that the planned amendments will satisfy requirements under ACTA, but commentators in the internet community say we cannot discount the possibility that ACTA may force further amendment to New Zealand’s domestic intellectual property law.