Submissions on regulations associated with the Copyright (Infringing File-Sharing) Act, belatedly released after the Ministry of Economic Development had made its decisions, show a number of people and organisations were still trying to change the government’s mind on provisions of the legislation outside the administrative aspects the MED asked them to comment on.
Many of the comments focus on the continuing shadow of a possible presumption of guilt on the part of alleged infringers. While the Bill’s language on this point was modified in its final stages, to make it clear evidence of innocence presented by the alleged offender had to be taken into account, this was still not enough for some submitters, including Google.
“As [the Act is] presently drafted, it is possible that the [Copyright] Tribunal may consider itself (in the absence of any evidence from the account-holder) required to find in favour of the rights-holder without itself being satisfied that each alleged infringement in fact infringed the rights owner’s copyright,” Google’s submission stated. “This is open to abuse by rights holders.”
Google's submission asked for the pertinent section - 122N(1) - to be removed and the Tribunal be “required to make a positive finding of infringement”.
MP Gareth Hughes, representing the Green Party, suggested that before a complaint of infringement can be upheld, detection should have been “direct … meaning that data has been downloaded from the offending address and verified as being copyright material for which the rights-holder has the rights” – rather than simply spotting someone with that IP address in a peer-to-peer pool requesting copyright content.
IT journalist Juha Saarinen suggests that partial downloads should not count as infringement. “Rights holders must show that the file in question was downloaded or uploaded in full,” he stated. “Partially downloaded files are not viewable or audible”
Incomplete files, Saarinen argues “may be the result of accidental access that was never completed and therefore the infringement never occurred.”
Judge David Harvey, probably the country’s most internet-savvy judge - emphasising that he is commenting in a personal capacity - suggests that more information be disclosed about the location of a complaining rights holder than MED recommends; this should include a physical address, he suggests. Such openness will discourage “vexatious” complaints. “The process must not be abused and only used for serious well-founded complaints,” Judge Harvey wrote. “Those claiming to be rights holders should be easily identifiable and locatable.”
On the question of fees, he recommends that charges to rights holders by ISPs be sufficient to defray the initial cost of setting up facilities for serving notices of alleged infringement, as well as the ongoing cost of their operation.
Rights holders’ organisations, naturally, veer towards minimising or eliminating fees. “We maintain that whatever costs are encountered by the IPAP [internet protocol address provider; a modified definition of ISP] should be at their expense,”the Australasian Performing Rights Association and Mechanical Copyright Owners’ Society (APRA-AMCOS) stated in its submission.“This is a reflection of the commercial advantage they receive from the communication of the infringing files.”
The Recording Industry Association of NZ (RIANZ) and record-label representative organisation IMNZ also pushed for minimal fees in a joint submission. “If IPAPs were allowed to pass the cost of performing the [notice-serving and tracking] on to copyright owners, this would considerably reduce …incentives for IPAPs to create and use efficient notification mechanisms,” it states.
RIANZ and IMNZ both utilise the “commercial advantage” argument. “For many years, IPAPs have benefitted from the increased take-up of their broadband services, driven in large part by the demand for illegal copies of entertainment content,” they say.
In contrast to Judge Harvey, RIANZ and IMNZ see no need for alleged infringers to have contact information for rights-holders, since formal channels are set up to allow the accused to file a defence.
In the event, MED decided on a fee of $25 per notice (modified in Cabinet from an initially suggested $20) - more than the rights-holders wanted but less than many ISPs think is justified. Orcon, for one, presents calculations to show an estimated cost of serving and tracking one notice to be $76.73.
The Telecommunications Carriers’ Forum estimates per-notice costs as “likely to be around $40”. It rebuts the rights-holder lobbies’ assumption of a profit from copyright infringement. “IPAPs are businesses,” TCF says. “They do not condone copyright infringement nor do they seek to benefit from it.”