Uncertainty around file sharing bill continues

Where is the burden of proof?, asks InternetNZ

InternetNZ is concerned a new section of the Copyright (Infringing File Sharing) Bill, suggested by the Commerce Select Committee, reverses the usual principle of innocence until guilt has been proved.

The pertinent section 122MA says: "In proceedings before the Copyright Tribunal, an infringement notice is conclusive evidence of the following:

"(a) that each incidence of file sharing identified in the notice constituted an infringement of the right owner's copyright in the work identified:

"(b) that the information recorded in the infringement notice is correct:

"(c) that the infringement notice was issued in accordance with this Act."

However, it continues "an account holder may submit evidence, or give reasons, that show that any one or more of the presumptions in [the above paragraphs] do not apply with respect to any particular infringement identified in an infringement notice.

"If an account holder submits evidence or gives reasons ...the rights owner must satisfy the Tribunal that the particular presumption or presumptions are correct."

InternetNZ CEO Vikram Kumar, acting on legal advice, says this places the burden of proof on the accused. "We are coming very close to guilt upon accusation," he says -- the catch-phrase applied to the original form of the "repeat infringer" provision, Section 92A.

The text of the Bill does not say "valid reasons" or "conclusive evidence", however, so, Computerworld suggested, it is open to the interpretation that if the accused raises the slightest objection, the burden of proof falls back on the accuser.

However, Kumar points out, the phrase "valid reasons" does occur in the body of the Select Committee's report in reference to this clause. Moreover, he says, the three points labelled (a), (b) and (c) establish very narrow criteria for a challenge. They do not, for example, leave room for a challenge on the grounds that the work was not copyright or that the way it was handled constitutes legal "fair dealing".

Furthermore, Kumar says, there is no penalty in the Bill as proposed for a false accusation. "We have evidence from overseas that abuse by copyright owners happens; that they make frivolous accusations."

MP Clare Curran, the Commerce Committee member who placed herself at the centre of the affair with a media release on the Bill, declined to comment this week when asked what s122MA actually means. She was not going to risk a top-of-the-head statement, she said. "I think everyone needs to take a deep breath first."

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