Law Society voices its criticisms of S92A

Submission to Code of Practice says law should be relegislated

If you think the debate over section 92A of New Zealand’s new copyright law is getting a bit emotional, you are probably right. Now a more sober group, the Auckland District Law Society, has pointed to issues in the legislation that it says could undermine “fundamental precepts of our common law system”.

In its submission to the Telecommunications Carriers’ Forum (TCF), which has been trying to draft a code to implement the law, the society’s Law and Technology Committee says it considers S92A is out of step with sections 92B through to E in not reflecting recognised safe harbour provisions for ISPs.

It says s92A amounts to a mechanism whereby the copyright holder, an unrelated third party to the contract between an ISP and their customers, can interfere with that contract and this could amount to a tort of interference with contractual relations.

The Society is also critical of the Copyright (New Technologies) Amendment Act’s definition of an ISP. It says all manner of businesses and organisations are included in the definition. An attempt in the TCF’s draft code to deal with this by defining a “downstream ISP” is not adequate and a better approach would be to amend the legislation to exclude such organisations from the definition.

Last week TelstraClear effectively killed attempts to create a formal, endorsed code of practice to implement the law by withdrawing its support for the effort. In the process, it could have opened the door to having the law relegislated.

According to TCF CEO Ralph Chivers, the working party set up to produce the code will continue to develop the document despite TelstraClear’s opposition. ISPs will then use the document “as they see fit”.

The Auckland District Law Society’s submission is also critical of the lack of guidance in the Act over what a “policy of disconnection” should contain and the lack of process to determine whether a claim to copyright and an infringement allegation is valid.

“In summary, section 92A does not provide enough checks and balances to ensure confidence and trust in the fairness of the law,” it says.

The society says the existence and ownership of copyright arises in around 30% of copyright cases. It says clients will confidently assert copyright, but will often be unable to back this up.

It says the process outlined in the draft code to notify users of a complaint, does not have sufficient information for either the customer or the ISP to verify the claim to copyright is valid.

“Without those details, the ISP does not have sufficient information to ‘know or have reason to believe’ that there is an infringement of copyright,” it says.

The society says both notices of infringement and counter notices should be sworn statements. Counter notices should also be expanded to allow the recipient to dispute the sender’s claim to originality and ownership of copyright.

Among other submissions, Google says it is commited to defending an “open internet”. The draft code, it says, should provide for “greater independence in the process, as well as including acknowledgement of the possible defences and exceptions to copyright infringement.”

A submission from video rental chain United Video says piracy is the biggest threat to the company’s business.

“If this legislation does not pass [sic] we see our future revenue being depleted to a point where we will no longer be able to trade. The end result would see mass unemployment of current staff at both store and head office levels,” the company’s submission says. “Franchisees would be forced to close their shops and landlords would be left with large untenanted premises.”

The full set of submissions to the TCF's draft code are here.

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