NZ’s S92A failure linked to Aussie ISP copyright case

Wording in Aussie law almost identical to failed NZ Act

While New Zealand’s government, internet service provider industry and copyright owners contemplate their next move following the withdrawal of Section 92A of the Copyright Act, a legal action currently awaiting hearing in the Australian Federal courts is set to revolve around a strikingly similar provision in Australian law.

Commentators on a mailing list run by civil liberties lobby Electronic Frontiers Australia point to the resemblance between the text of S92A and Section 116AG and AH of the Australian Federal Copyright Act. They suggest the New Zealand government backoff may affect a case to be tried later this year, between the Australian Federation Against Copyright Theft (AFACT) and ISP iiNet.

AFACT alleges breach of copyright by a number of iiNet users who, it says, were detected downloading copyright music and videos.

Subsection 116AG of the Australian law says copyright owners cannot make a monetary claim against a telecommunication “carriage service provider” (CSP) for breach of copyright by its customers.

The following section says for an ISP to claim CSP status it “must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers” – precisely the wording of New Zealand’s doomed S92A. The definition of a “repeat infringer” is also left undefined as it was in New Zealand.

The Australian statute also contains a reference to an industry code, like the one the New Zealand Telecommunications Carriers’ Forum unsuccessfully tried to negotiate.

“If there is a relevant industry code in force, the carriage service provider must comply with the relevant provisions of that code relating to accommodating and not interfering with standard technical measures used to protect and identify copyright material,” says subsection 116AH.

In its statement of defence, iiNet says it does have a policy of the kind required by subsection 116AH. The ISP, on its website, at www.iinet.net.au/legal/copyright.html says: “NOTE: The hosting or posting of illegal or copyright material using an iinet service constitutes a breach of iinet contractual obligation under the customer relationship agreement Sec 4.1 & Sec 4.2. Such a breach of contract may result in the suspension or termination of service without notice to the subscriber.”

The iiNet website also gives an address for service of copyright infringement complaints, but when AFACT served such specific complaints, iiNet simply passed them on to police.

“NZ’s S92A came unstuck during the development of [the TCF] code, when the rights holders made it perfectly clear that they wanted a code which established that the term “repeat infringers” meant the same thing as ‘repeat alleged infringers’,” says a commentator on the EFA mailing list.

“Australia has never registered an industry code under S116AH. If we do, you can expect the rights-holders to behave in the same way here as they did in NZ”.

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