Draft copyright code disputed by both sides

InternetNZ maintains its criticisms of the new regime

A draft ISP Copyright Code of Practice, aimed at clarifying sanctions against illicit downloaders of copyright works, has been released for public comment — and internet industry sources are already critical of the effort.

The 29-page document (with a further four pages of suggested alternative wording on procedures for disputing an accusation) was drawn up by the Telecommunications Carriers Forum in consultation with internet service providers and organisations representing copyright owners.

It aims to clarify Section 92a of the Copyright Act which requires ISPs to terminate the internet service of alleged repeat offenders.

The scheme provided in the draft requires evidence of four successive infractions, at least a month apart, before a “termination order” can be issued. Interim notices are, in effect, warnings but are coyly termed “education notices”, being directed at “educating that user as to the possibility of infringement having occurred over the user’s internet account”.

Ample scope is given for the user to dispute the allegations. Organisations representing copyright holders, indeed, think the balance has been tipped too far in the user’s direction.

While an education notice is disputed by an unresolved “counter-notice” from the user, it must be recorded as such and does not count towards the total of four.

Copyright holders’ representatives say this offers too much scope for obstructionist use of dispute notices. They have proposed an alternative wording that requires the validity of the counter notice to be “ascertained” by a party recognised as the copyright holder of the work in question.

InternetNZ executive director Keith Davidson says this means rights holders “take on the role of judge and jury”. This is not an appropriate solution, he says.

“It is already outrageous that the government is requiring ISPs to be judge, jury and executioner towards their own customers.”

The Copyright Act defines an ISP broadly, to encompass anyone who provides a service allowing another user to download digital material; this potentially includes any company providing internet to its employees and even the owner of the main computer in a household.

Claiming ISP status could work to the advantage of such people by sheeting the offence home to the employee or family member responsible and preventing innocent users from being disconnected. But to claim such status, they will have to sign up to the provisions of the code, which means handling complaints, keeping appropriate records and levying the final penalty if required.

The code provides for lenient treatment of “vulnerable” customers, dependent on the internet for their health or safety.

Deadline for public submissions on the draft code is March 6. The contentious Section 92a is currently scheduled to come into force on February 28.

“While the submission date is shortly after s92a comes into force, it is important that we have a fulsome debate about the appropriate approach to its implementation,” says TCF head Ralph Chivers.

Other Internet industry figures have immediately criticised the code for its legalistically opaque wording. InternetNZ has provided a digest of the code in simpler language.

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