Copyright proposal pushes disconnection decision to Court

Disconnection penalty limited to six months in section 92A replacement proposal

Minister for Justice Simon Power has released government’s preferred option to replace the controversial Section 92A of the Copyright Act — and it seems internet users have won more than rights-holders.

Disconnection from the internet remains in the proposed legislation, but a Court hearing is required before this punishment can be imposed and suspension will be limited to six months.

When an infringement is initially suspected, three successive warning notices will be sent and if rights-holders think offences are continuing after these, the matter will initially be referred to the Copyright Tribunal. This seeks to avoid any implication of “guilt upon accusation”, a criticism of the original form of the clause.

However, the Tribunal can only issue penalties of $15,000 or less.

A claim for more than this amount, or a claim of further persistent offending must be pursued through the District Court, which can impose a penalty of up to $200,000, or order six month’s disconnection.

InternetNZ has expressed initial approval of the proposals, which spokesman Jordan Carter says implement its recommendation of a “notice-and-notice” regime, where the internet service provider acts only as a conduit for notices passing between rights-holder and alleged offender.

The alleged offender has the option of dealing with the rights-holder directly, but the ISP route preserves confidentially of his or her identity.

That identity will be revealed to the Copyright Tribunal when it becomes involved, but will not be disclosed to the rights-holder to prevent it taking action outside the Tribunal.

Campbell Smith, chief executive of the Recording Industry Association (RIANZ) could not be contacted. Tony Eaton, head of the NZ Federation Against Copyright Theft spoke briefly to Computerworld today but owing to other priorities had been unable to read the Cabinet paper containing the proposal at that time.

Bronwyn Holloway-Smith of the Creative Freedom Foundation, which has led protest against the original form of s92A, could not be reached for comment.

The proposal will be enshrined in an amendment bill, which will go through the normal Parliamentary process. The Cabinet paper suggests a provisional date of February 2010 for introduction of the bill and July 2010 for enactment.

The bill will embody a tight definition of an ISP, to avoid commercial organisations and families being unwittingly cast in that role and having their internet account closed owing to the actions of one family member or employee, says the paper.

Power said the three-notice procedure was the key to the process.

"The procedure will both educate and warn file-sharers that unauthorised sharing of copyright works is illegal, and in turn stop a large proportion of illegal file sharing.

"A great deal of work has gone into finding a fair, effective, and credible process for the enforcement of copyright against illegal peer-to-peer file-sharers.

Power said though right holders will be able to seek suspension of accounts through the courts, he expected that would happen only in cases of serious offending.

"I want to stress that account holders will have the opportunity during each of these processes to defend claims by right holders."

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