Carrier group may take on take-down

Working party may expand scrutiny of new copyright law

A working party convened by the Telecommunications Carriers Forum (TCF) to address issues with new copyright laws is prepared to consider the ISP notice-and-take-down regime if its members see it as necessary, says the forum’s CEO. Ralph Chivers.

At present the working party is focused on section 92A of the Copyright (New Technologies) Amendment Act, which requires internet service providers to have in place and “reasonably implement” a procedure for disconnecting repeat offenders.

Chivers acknowledges that section 92C is also problematic in that it requires ISPs to act immediately to take down content they host if a complaint is made by a rights holder that it infringes copyright.

TelstraClear has already said it will have no alternative but to act immediately, without stopping to check or verify that the complaint is well-founded.

There are potential issues with the “practicalities” of section 92C and it’s hard to see the working party being able to ignore it completely, Chivers says. But at least in that section there is more specificity about the form of the notice to be given, he says.

Section 92A is very imprecise with regard to the number of offences that have to occur and over what period of time in order to constitute “repeat” offending.

The working group has had several internal meetings and another will be held this week. It consists of representatives of carriers and ISPs and it is also consulting the ISP Association (ISPANZ), InternetNZ and Consumer NZ.

It has also held one workshop with rights organisations the Recording Industry Association (RIANZ), the NZ Federation Against Copyright Theft and the Australasian Performing Rights Association (APRA), and there will be other such meetings. The first workshop was “positive and constructive”, Chivers says.

The working party aims to producing a draft code of practice on handling complaints under Section 92A by the end of the year, he says. Implementation of that section of the legislation has been deferred until the end of February.

Section 92C, however, was scheduled to come into force on November 1.

InternetNZ executive director Keith Davidson says he can see the reason for TelstraClear making the decision it has under the present state of the law, as an ISP’s competing interests and risks are clear.

“We’re concerned from the consumer’s point of view.” He points to the potential for “a chilling effect on free speech”, citing as an example the repeated complaints by the Church of Scientology against those who publish extracts from its documents for the purpose of criticism. In many cases, however, the genuineness of the complaint will be obvious, he says.

Davidson favours a re-examination of copyright legislation from first principles, in the light of new technology. Reminded that the last round of amendments took years, he says “it should take an age again if that’s what’s needed. Better to take an age than to continue tinkering with something that’s broken”.

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