New Zealand ISPs forced to police internet piracy

Courts left to define 'reasonable' implementation of account shut-down policy

Internet service providers took a big step towards becoming internet police courtesy of a new copyright law passed in Parliament last week.

The Copyright (New Technologies) Amendment Bill requires ISPs to have a process in place to cut the internet access of persistent copyright infringers and to enforce that process, according to the Ministry of Economic Development (MED).

Ministry spokeswoman Bronwyn Turley says ISPs are required not only to adopt but to “reasonably implement” an account discontinuation policy. If an ISP fails to do so, the provision could be enforced by a court order, she says.

The interpretation of “reasonably implement” will depend on the court, Turley says.

A requirement for an ISP to have a process for disconnecting persistent online copyright offenders was included in the first version of the bill, but then removed by the Commerce Select Committee.

It was replaced, by means of a supplementary order paper (SOP) and in a slightly watered-down form, in the last stages of debate by Culture and Heritage Minister Judith Tizard.

Recording Industry Association of New Zealand chief executive Campbell Smith says he is pleased with the result. The new law has more force than might appear at first sight, he says.

It “clearly requires a positive contribution from ISPs and, on behalf of its member labels and musicians, RIANZ looks forward to continuing discussions with ISPs about their responsibility for protecting copyrighted content on their networks, and what practical steps can be taken to effect this,” he says.

However, he warns, RIANZ will continue to lobby government over some areas of concern, citing provisions relating to technological protection mechanisms that, he says, “require further and probably on-going review”.

All around the world, debate is raging over whether ISPs should be required to police the online activities of their customers. In the UK, that has centred on proposals for a “three strikes and you’re out” policy (see page 19).

Charles Dunstone, head of broadband supplier Talk Talk in the UK, said recently such demands were unreasonable and unworkable and that it was not his job to be an internet policeman.

“We do not control the internet nor do we control what our users do on the internet,” he said.

The original New Zealand proposal, inserted at Section 92A by the Copyright (New Technologies) Amendment Bill, absolved ISPs from liability only if they put in place a process for discontinuing the accounts of persistent offenders and actioned it as appropriate.

As it has arrived, the provision requires ISPs to have such a procedure, but no longer makes their protection from liability contingent on their putting that procedure into operation in an individual case, says a spokeswoman in the minister’s office.

ISPs were concerned that their “safe harbour” provisions — provisions that limited their liability for the online activities of their customers — were imperilled by the clause as originally worded, the MED’s Turley says.

This was why it was struck out in Select Committee and why, when it was replaced, this was done in a weakened form. Sanctions through ISPs against persistent offenders can still be effectively enforced, she argues; “it’s simply being done in a different way”.

Another provision, in Section 92C, requiring the ISP to remove offending content from its servers if it knows of a breach of copyright, was also changed in the second-reading to place emphasis on the need for a formal notification. Tizard’s SOP essentially restored the original obligation, but still references the existence of a formal notice as one factor a court should take into account when judging adequate knowledge.

These clauses implement what is described in the international ISP community as a “notice and take down” regime, and differs from InternetNZ’s suggested policy of “notice and notice”.

Under that plan a notice from the copyright owner to the ISP would simply have been passed on to the alleged infringer and the dispute left to those two parties with the ISP having no further obligation.

“We lost that one,” says InternetNZ spokesman Richard Wood.

The organisation’s executive director, Keith Davidson, expressed puzzlement and disappointment that the “format-shifting” exemption, permitting a sound-recording to be transferred from a purchased CD to another platform such as an MP3 player, has not also been applied to video recordings.

The new law also applies stringent penalties for dealing in equipment or programs able to evade a technological protection mechanism (TPM) that prevents a work from being copied. Selling, hiring or advertising such equipment is punishable by a fine of up to $150,000, five years’ imprisonment or both.

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