Rights holders still look for 'ultimate sanction'

NZFACT welcomes French resolve to fight piracy

After releasing a strongly worded statement in response to the French Constitutional Council’s striking down of internet disconnection as a remedy for copyright infringement, the NZ Federation Against Copyright Theft is still hanging on to the disconnection threat as an ultimate sanction.

After initially indicating to Computerworld that this did not necessarily involve disconnection, NZFACT executive director Tony Eaton now says there was a misunderstanding.

There has to be an ultimate sanction in place against the offence, he says. While NZFACT wants to avoid disconnection if possible, it has not abandoned the policy.

Eaton says 80% will respond to warnings about infringement.

The French Constitutional Council said earlier this month disconnection amounts to a denial of the right to freedom of speech and aspects of the mechanism of notification also violates the principle of innocence until guilt has been proven.

However, a subsequent French government statement makes it plain that the push for some kind of sanction against online copyright breach will continue.

Christine Albanel, French Minister for Culture, says the Creativity and Internet Bill will return to the French Parliament to accommodate the ruling of the Constitutional Council but that aspects of the bill not affected by the decision will still be applied, including a graduated warning system, with similarities to the failed Section 92A of New Zealand’s Copyright Act.

NZFACT, in a media statement, praises the French government’s steadfastness.

Eaton says: “We welcome the French Government’s resolve to maintain its support for creative communities against internet piracy. We commend the New Zealand government for their similar commitment to prevent online piracy.”

InternetNZ executive director Keith Davidson says the NZFACT statement is “either an attempt to find support for their approach to termination where none exists, or alternatively can be seen as a backdown on their previous strong support for termination.”

In an initial brief response, while fielding another telephone call, Eaton appeared to be steering towards the latter course. Now, however, he has confirmed Davidson’s fears that disconnection is still on the table.

Other aspects of any successor to s92A are still under discussion by a working party consisting largely of high-powered lawyers and submissions have been canvassed from interested parties.

InternetNZ is still pushing for amendments to the graduated warning system itself which would extricate ISPs from the process. It has always favoured a “notice and notice” regime, whereby after receiving notification of an alleged breach from the content owner, the ISP will pass it on to the alleged offender and leave resolution of the dispute to those two parties.

“We continue to advocate for a notice-and-notice system that deals with the problem effectively, and will be releasing further detail around this in the next couple of weeks,” says Davidson.

The Internet Service Providers Association of NZ (ISPANZ) has also asked the government to take termination of internet accounts for copyright infringers off the table in its work to replace Section 92A.

ISPANZ President Jamie Baddeley says terminating internet accounts to address copyright infringement is a fundamentally flawed approach.

“It is a crude instrument with a shotgun-like approach that will not address the majority of offences. We would expect that addressing this issue and finding an alternative solution is the first order of business.”

Baddeley says it is time for rights holders such as the music industry to “embrace the online world, work with ISPs to make their product readily available and innovate their business models.”

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