Court beckons for ISPs to define new copyright law

Wanted: ISP the 'nerve' for court

ISPs will have to push cases through the courts to define what new copyright laws mean in practice, says lawyer Michael Cavanaugh of patent law firm Baldwins.

According to Cavanaugh, amendments to the Copyright Act requiring ISPs to take down copyright infringing material are “rather broad” and will probably require refining through court cases.

But that, he says, will be a matter of an ISP “having the nerve” to push a disputed case through the courts.

The provisions, he says, seem to be following in the footsteps of the US Digital Millennium Copyright Act, but that act has a comparatively well-defined procedure for disputing an alleged infringement.

Discussions there would involve the ISP, the copyright owner and the uploader of the allegedly infringing material, who is given a chance to put their case. Similar formal procedures are written into Australian law, Cavanaugh says. No such provisions are included in the New Zealand Act.

The New Zealand clause is phrased in very general terms, prescribing take-down as soon as possible after becoming aware, whether as a result of receiving notice or otherwise, that material is likely to infringe copyright.

This seems to reflect a general tendency in the New Zealand legislation to phrase terms as generally as possible, says Cavanaugh.

The requirements of sufficient notice will presumably be progressively defined.

Something of the same vagueness affects the provision in the act for ISPs to discontinue the accounts of repeat copyright infringers, he says. What constitutes repeat offending is not defined. The law now requires an ISP to “adopt and reasonably implement” a disconnection policy, but what “reasonably implement” means is again left to the courts.

Even the definition of ISP in NZ law depends on the services provided, not on how the providing company describes itself, he says. Again, this is broader than overseas definitions.

Asked about treatment of repeat infringers, Stephen Duder, national marketing manager at ISP Actrix, says “how would we know?” Actrix does not observe what its users are doing day by day, he says, and even a particularly large volume of material being transferred by a particular user would raise no alerts, as it was being paid for.

The only reason for abrupt disconnection would be in a substantiated report of spamming. That can get the ISP listed on anti-spam sites and compromise its operation and that of innocent users, Duder says. “So we have to act in that case.”

Told that information on a copyright breach would probably come as a result of a formal notice, he says in that case a procedure will clearly have to be in place to evaluate and where appropriate act on such notices and that should not be difficult.

Telecom public relations spokesman Nick Brown says there are many commonsense provisions in the act, which Telecom welcomes.

However, “the changes made to section 92 [on ISP responsibilities to combat infringement] will certainly cause ISPs some concerns. We recognise that ISPs have a responsibility to assist [in fighting] copyright infringement in certain circumstances, but we don’t see it as an ISP’s role to police the internet for copyright infringement. This will be expensive and potentially slow down the services we provide.

“We do not want to place ourselves in a dispute between a purported copyright owner and alleged infringer. We are also concerned about taking down material which, it turns out, is not a breach of copyright, or is not actually owned by the party claiming ownership.”

Brown hints that Telecom Xtra will perhaps be the ISP with the “nerve” to encourage a better definition of criteria and procedures within the law.

“We are keen to take a role in helping to form the regulations which govern the notice-and-take-down regime within the act,” Brown says. Meanwhile, Telecom Xtra is discussing the changes to the act internally and how to resource any extra responsibilities, he says.

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