ISP definition in Copyright Bill under fire

Submissions reveal range of concerns

Submissions to the Commerce select committee on the Copyright (Infringing File Sharing) Bill show there is still considerable concern that the Bill's definition of an internet service provider (ISP) could be too wide, capturing universities, libraries and other businesses that provide internet access to employees or customers.

As a result, such organisations may have to keep track of alleged copyright infringement by their users, with the attendant increase in workload and the possibility of stigmatising the wrong user, say the Telecommunications Carriers Forum (TCF) and Telecom.

In their submissions they suggest the definition of an ISP under the new Section 122A created by the Bill be modified to apply only to organisations that allocate IP addresses to their customers. If an ISP allocates a group of fixed addresses to a company and the company simply lets its users log on to whichever address is free at the time, the user company will not have to keep track of who is logged on where or be concerned about having infringement notices served on it.

Section 122, introduced within the current Bill, is a replacement for the controversial s92A of the original Copyright Bill that was withdrawn in March 2009. However, the remainder of s92, s92B to 92E, aimed at ISPs that host infringing content -- remains in the Act. The new bill also contains a different definition of ISP.

The definition of "file sharing" in the current Bill can be read as also covering simple download of material, so it overlaps with the other provisions in the Act, TCF suggests. The pressure going on peer-to-peer file traders has led many to shift to obtaining material through simple downloading services such as Rapidshare TCF states.Hence potential offenders would come under the purview of s92B to E, which do not have the same protections for the account-holder as those built into the new s122.

Both TCF and InternetNZ suggest definitions be changed to remove the overlap, or the protections be extended to cover simple download services.

The NZ Law Society, besides its controversial proposal that repeat offenders be prevented from holding any internet account for up to six months, believe a lawyer should be permitted to represent an alleged offender before the Copyright Tribunal. The Bill currently prohibits this unless the Tribunal "directs otherwise". While lawyers are also excluded from appearing for the copyright owner, this does not restore balance, suggests Law Society spokesman Clive Elliott, since the copyright owners will be well served with legal advice outside of the Tribunal.

The Society also regards the requirement that a "copyright owner" bring any action to be unduly restrictive and suggests that agencies (called "collecting societies") whom police copyright on behalf of several copyright owners, be allowed to act on a suspected breach.

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