Copyright proposals a mixed bag, say Internet groups

InternetNZ describes the government's proposals to fix Section 92A of the Copyright Act as a mixed bag that retains the "toxic remains" of the previous government's internet access termination regime.

However, the NZ Federation against Copyright Theft (NZFACT) representing rights-holders, has welcomed the document as "a demonstration of the government's commitment to ensuring New Zealand's online environment is safe and secure for consumers, ISP's and copyright owners".

The government's discussion document (pdf), released today, proposes a three phase procedure that will provide rights holders with an alternative course of action to filing proceedings in the High Court. Disputes will instead be managed by the Copyright Tribunal.

"It is intended that the Copyright Tribunal will have exclusive jurisdiction over matters covered by section 92A, unless proceedings commence or have commenced in the courts," the discussion paper says.

Amendment of the Copyright Act 1994 will be required to extend the jurisdiction of the Copyright Tribunal.

InternetNZ says issues such as the definition of an ISP and safe harbour for providers do not appear to have been addressed in the document.

Executive director Keith Davidson says the "Phase 1" concept, notice and notice, would provide useful education and likely result in a significant reduction of copyright infringement, as rights holders have found internationally.

"However, the procedures elevating through Phase 2 and Phase 3 create undue complexities and compliance costs for both ISPs and rights holders," he says.

Davidson says that while the decision to terminate internet accounts has been moved from ISPs and rights holders to the Copyright Tribunal, InternetNZ is disappointed that termination still remains one of the punishments.

"Retaining termination of internet accounts repeats the mistakes of the previous law and risks another public backlash, as was seen in the blackout campaign in February and March 2009.

"Nobody condones copyright abuse, but the termination of a household or business internet account is simply out of proportion to the alleged offence."

After unsuccessful attempts to settle on a code of practice for enforcing section 92A, the government withdrew it earlier this year and set up a working party to devise a new framework for handling such alleged offences.

NZFACT executive director Tony Eaton says rights holders will be reviewing the working party's proposal and considering their position over the next month prior to making a submission.

Jamie Baddelely, president of the ISP Association of NZ (ISPANZ) says the burden on ISPs has been lightened.

"I hope we don't have to keep records of what subscriber is at which stage of the process," he says.

Some more work could be done in the early phases to ensure the anonymity of the person accused is preserved, he suggests; for example the Copyright Tribunal could provide an anonymous "drop box" for complaints and rebuttals.

He agrees with Davidson that the consequences for a business with a copyright offender on staff have not been satisfactorily handled. There is a danger that perceived risk to the business might have a chilling effect on its accommodation of general internet use by its employees, Baddeley says.

There should be penalties for rights holders who bring unsubstantiated complaints, Baddelely suggests, to endure the provisions are not used frivolously.

He too is disappointed that termination remains on the cards.

A harsh action is likely to provoke a harsh response, he says, by driving illicit trading further underground; offenders may resort to encryption and other roundabout ways of evading detection, which will not be to the law's or the rights holders' benefit, he suggests.

The proposal's introduction says it is intended to provide a fair and efficient process for rightsholders to deal with repeat copyright infringement.

"The proposal attempts to address internet user (subscriber), rights holder and internet service provider (ISP) concerns that have previously been raised with regard to section 92A of the Copyright Act 1994," the document says.

"During the development of this proposal, of particular focus for the Working Group and Ministry of Economic Development (MED) officials, has been to ensure subscriber access to due process in cases of alleged infringement, and to consider the role of ISPs in curbing copyright infringement that is facilitated through their networks."

Davidson says to reduce abuse of copyright, the government can implement a straightforward notice and notice regime. This would mean those alleged to be infringing copyright receive a notice educating them about the problem.

"Overseas experience shows this cuts repeat infringement by around 70 percent,"

says Davidson.

Interested parties are invited to make submissions, with a deadline of 5 pm on August 7.

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