A bevy of IT and internet interest groups have combined to criticise a key provision of the new Copyright (New Technologies) Amendment Act.
“Section 92A has achieved one thing, and one thing only”, Telecommunications Carriers Forum (TCF) CEO Ralph Chivers says, “uniting the ICT sector and others who will be affected in an unprecedented show of solidarity against it.”
In a joint statement, the TCF, InternetNZ, ISPANZ, TUANZ, New Zealand Computer Society and Women in Technology say the law is deeply flawed and will not work. The TCF is creating a Code of Practice to guide ISPs and internet users through what it calls a "legislative minefield" created by section 92A, which they say will require ISPs to "reasonably implement” a policy to disconnect ”in appropriate circumstances” the internet services of users who have repeatedly downloaded or uploaded infringing music, movies, games and other copyright material. “While we recognise that the Act has introduced a number of positive measures, some hastily inserted last-minute changes have placed an unacceptable burden on internet service providers and have the potential to significantly undermine the legal rights of internet users”, Chivers says in a statement released today. “The Act gives no guidance on what ‘reasonably implement’ or ‘in appropriate circumstances’ mean,” Chivers says. “This leaves the door wide open to those who seek disconnection of an alleged repeat infringer based on flimsy evidence, or worse, allegations alone. “Identifying repeat offenders will not be easy. A complex data matching exercise will be required, and even then it will not always be clear who the real offender is, particularly when an internet account is used by a family, a business or a school. The potential for an alleged offender to be denied natural justice is significant. For these reasons, a court order backed up by solid evidence would normally be required before taking such invasive action.” Chivers says businesses support the need to protect intellectual property, however, protecting one person’s interests at the expense of others is inappropriate. InternetNZ executive director Keith Davidson agrees. “The potential for infringement of human rights is a significant concern to us. Arguably one of the great benefits of the internet has been the strengthening of human rights and the development of democratic freedoms around the world. However, this law change has the potential for Internet users to have their service disconnected on very weak grounds, undermining the fundamental right of ‘innocent until proven guilty’.” Davidson says rights holders and the industry need to work together, to find more pragmatic solutions. "We need to preserve the service providers’ obligations to offer unencumbered access to the internet for their customers but at the same time find ways to adequately protect copyright,” Davidson says. Internet Service Providers Association president Jamie Baddeley says the law provides no protection to ISPs who try and implement the its requirements in good faith. "They are exposed to legal risk from their customers if they act, and to legal risk from copyright holders if they do not. They are caught in the middle without any form of legal protection and will be required to go through a costly and complex process to solve a problem that is not of their making,” Baddeley says. Chivers says it will be up to the next Parliament to "repair the problems caused by this deeply flawed legislation".