Discontent continues to fester on copyright front

Google-Microsoft initiative suggested to challenge online music business model

The passage of the Copyright (Infringing File Sharing) Amendment Bill has if anything intensified rather than calmed the storm of discussion on the issue and the threat of restrictive intellectual property clauses in the forthcoming Trans-Pacific Partnership free-trade agreement (TPPA) is adding to discontent.

Commentators have accused the Opposition of giving in too easily by allowing termination of internet access for persistent infringement to stay in the Copyright Act, even though it will not be brought into effect immediately.

Many say copyright breach by file-sharing happens largely because the works concerned are unavailable in New Zealand by legal means. More items made available through paid download services such as iTunes would stop a significant proportion of attempts to obtain the material illegally, they say.

A group of commentators, including Labour ICT spokesperson Clare Curran, are toying with the idea of persuading vendors such as Google and Microsoft to band together so the business model of online music provision can be brought into the 21st century.

Twitter still carries a scattering of avatars blacked out as a protest against the passage of the law and there are nervous forebodings about what US interests might seek to include in TPPA.

A leaked draft of the US position on the IP section of TPPA is too extreme to be a serious proposal towards a final position, says IP lawyer Rick Shera on the Public Address blog. "Positions as extreme as the latest US IP chapter surely cannot be anything other than blatant negotiation bullying," he writes.

The US entertainment industry now has TPPA negotiators battling on its behalf to reintroduce measures on both those fronts.

Having substantially lost out during the negotiation of the ACTA treaty on its intent to impose termination of the internet accounts of those who repeatedly breach copyright by online file-sharing in New Zealand and to hold internet service providers liable for the misdeeds of their customers, the focus of the US entertainment lobby is now on TPPA.

The draft permits a signatory country to include "limitations in its law regarding the scope of remedies available against service providers for copyright infringements that they do not control, initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf," but then, in wording almost identical to the successfully repealed Section 92A of NZ's Copyright Act, it says "eligibility for the limitations in this subparagraph shall be conditioned on the service provider adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers."

In other words, it suggests, unless an internet service provider has a policy including termination, it should not be allowed immunity from penalties arising from the illegal activity of its customers.

Clause 3 of the US TPPA draft's section on patents (Article 8) imposes narrow restrictions on inventions that can be excluded from patentability; it appears to rule out New Zealand's exclusion of patents on software, embodied in the current text of a Bill amending the Patents Act.

The US TPPA draft also seeks to toughen restrictions on technology designed to circumvent technological protection mechanisms such as digital rights management, which restrict use of copyright material.

New Zealand's Copyright Act as currently worded allows such devices to be imported or supplied for the purpose of circumventing TPMs to assist a "permitted act" such as research or review.

The US paper would also permit owners of intellectual property rights to impose restrictions on parallel importing -- legal in New Zealand, Shera says.

See also Day of action against file sharing legislation planned

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