Updated: InternetNZ continues to oppose disconnection penalty

Compensation for copyright infringement should be at value of digital product, lobby group argues

InternetNZ is continuing to oppose disconnection as a penalty for online copyright infringement and is arguing that any such penalty should be limited to a period of a week.

The lobby group released its submission to the Cabinet’s Economic Growth and Infrastructure Committee on the Minister of Commerce's paper “Illegal Peer-to-Peer File Sharing” today.

InternetNZ says it supports the government's new approach to replacing the failed Section 92A copyright infringement law introduced by the Labour government in 2008. However, it makes a number of procedural points and asks for clarifications it says are "consistent with the overall approach set out in the recommendations agreed by Cabinet".

Among these are a recommendation that awards of compensation for infringement be valued at the cost of digital product rather than physical products such as CDs.

The group also argues that given there is no stated intention to ban people who have had their internet accounts suspended from opening new accounts with the same or a different internet service provider, any disconnection penalty should be limited to a period of one week.

InternetNZ further argues that the safe harbour from legal action enjoyed by ISPs who comply with the law should be extended.

"InternetNZ supports this safe harbour, but as a matter of principle suggests that the safe harbour should protect ISPs from liability both from rights holders and from their own customers, where they are complying with the Act. The current wording only offers a safe harbour from rights holders."

The government threw Section 92A out last March after concerted protests over the introduction of a penalty for infringement of disconnection without legal process.

InternetNZ also says the fee government suggests be imposed on copyright-holders who make a complaint, to defray an ISP’s costs in following the further process, is insufficient.

Government intends the fee to cover costs of matching an ISP address to an offender and sending out notices.

“There are further costs, however,” says InternetNZ, “the most significant of which is the capital cost of amending an ISP’s systems…to keep track of alleged infringements, to ensure notices are sent consistent with the timelines set out…and to provide on request details to the Tribunal and the Court.”

It lists other costs it says have not been taken into account and says all should be considered when the minister sets the fees.

Response from the Recording Industry Association of NZ (RIANZ), representing owners of copyrights to music — the bulk of the downloading problem — has so far been confined to a five-paragraph statement expressing concern that “the proposal as framed will not fulfil the government's good intentions.

“The process outlined in the policy paper will be time consuming, burdensome and expensive for rights holders,” said RIANZ “In practice, it will likely not provide a viable alternative to court action such as currently exists pursuant to the Copyright Act 1996."

That statement was issued on December 17, the day after the government statement. Attempts to get an updated comment were referred to CEO Campbell Smith, who has not yet responded to messages.

RIANZ’s December statement indicates that it will wait for the draft Bill to be tabled in Parliament and then prepare a submission.

Tony Eaton, executive director of the NZ Federation Against Copyright Theft, said the organisation and representatives of the movie industry were considering the proposal and he will not be able to give a considered response until Friday (January 15) at the earliest.

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