Websites threatened by new Copyright Act

Managing copyright infringement complaints is fraught with risk

It isn’t just the threat of having to cut web access to customers that is vexing internet service providers wrestling with implementing the government’s new copyright law — now they may have to snuff out websites if someone complains about a copyright violation.

ISPs and industry groups joined forces last month to oppose Section 92A of the Copyright (New Technologies) Amendment Act, which requires them to disconnect users caught downloading copyright material. However, another section of the Act, Section 92C is now raising concern.

TelstraClear’s head of corporate services, Mathew Bolland, says from November 1, if TelstraClear hosts a website and someone phones up complaining that site has breached their copyright, TelstraClear will have to take the site down.

“We don’t check or verify,” he says. “We take it down.”

Bolland says he doesn’t think anyone in the industry saw this before it happened. ISPs were working on a code to implement the new law but, he says, such a code would only manage the law, and the law is the problem.

“In the interests of our customers, this is a ridiculous situation,” he says.

Bolland says from November 1, ISPs will have to act on every complaint, whether valid or not. There’s no requirement in the law for anybody to check the bona-fides of any complaint.

He says people with malicious intent can misuse the legislation.

“I doubt the law was intended to do this, but that’s the effect,” he says.

“Protecting copyright holders’ rights is important, but in this the end-user is totally disadvantaged.”

Associate Commerce Minister Judith Tizard says, however, that ISPs are in a unique position to be able to control the provision of infringing material. A person laying a complaint has to be able to prove they are the owner of the copyright or an agent of the owner, she says.

“I read the submissions and realise it’s a difficult issue,” she says, adding the Act will be amended if needed. She says she plans to talk to the chair of the Copyright Tribunal about that body playing a role, either formally or informally, in the process.

ISPs have to take responsibility, just as the Post Office has to take responsibility for what it transports, she says.

“It is clear that in some circumstances if infringing material, such as sound recordings and films is allowed to remain on websites, it can cause significant economic harm to the copyright holder. The notice and takedown provisions in the Act recognise this reality,” she says.

One of the potential issues is that while the legislation appears designed primarily to protect multimedia content, it also applies to text. She says nobody raised the possibility in submissions that text could be treated differently from multimedia.

“Concerns that the provision could impact on free speech and free provision of information are addressed through the design of the provision — in particular through the offence provision — which will help ensure that notices are accurate and notice provisions are not abused.”

Ernie Newman, CEO of the Telecommunications Users Association of New Zealand (TUANZ), says the Act is a “thoroughly bad and unprofessional law” that should never have gotten anywhere near a select committee, let alone Parliament.

Newman says any website could fall foul of the law.

Rick Shera, a partner in law firm Lowndes Jordan, says ISPs have to decide whether material infringes copyright after receiving a complaint. If ISPs choose to leave the material up they have no protection from liability for secondary copyright infringement.

The risk of not removing material is, therefore, greater than the risk of taking that material down, Shera says. “It is fraught,” he says.

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