Wifi operators are ISPs so not liable for copyright breaches: Computer Society

Update: Intellectual property lawyer Rick Shera says NZCS may have an argument

The NZ Computer Society believes it has found a way of avoiding a potentially fatal effect of new copyright laws on wifi services, through declaring them to be internet service providers – a kind of organisation still defined in the Copyright Act. Copyright watchers have expressed fears that the new regime designed to deter illicit downloading and uploading of copyright works might leave wifi service operators potentially liable for the offences of their customers, or with the insupportable responsibility of policing the activities of everyone who uses their services. Such commentators fear that in the terms of the Copyright (Infringing File Sharing) Amendment Act 2011, passed under urgency in May wifi operators could be construed as Internet Protocol Access Providers (IPAPs). The IPAP definition was constructed in the drafting of the Act to prevent too wide a category of organisations being construed as internet service providers. However, being classed as IPAPs leaves wifi operators with the responsibility of policing the issuing of notices to alleged offenders and, in particular, of identifying such users and establishing which of them are repeat infringers. These obligations are spelt out in the lengthy Section 122 of the amendment act.

Alternatively, the wifi operator could assume the role of an “account holder” serving an upstream IPAP, but this would make them ultimately responsible for all offending done on their service, much as a company or householder is liable for the infringing actions of employees or family members.

The Library and Information Association of NZ-Aotearoa (LIANZA) has pointed out, in its submission on the drafting of regulations to accompany the Amendment Act, that such a position is untenable for an organisation with thousands of users, many of them transient - using services only for a short time and not identifying themselves fully to the provider.

The NZCS says to define a wifi provider as an account holder would “significantly and directly impact the on-going viability of these businesses and result in the untenable situation where public access Internet, essential to the future economic growth and prosperity of New Zealand as a country, was threatened.

“We believe this would certainly not be in the interests of New Zealand and contrary to the objectives of government and this act.”

In its submission on the regulations, the Computer Society contends a wifi operator cannot be defined as an IPAP, since the definition in the amendment act excludes entities that provide Internet services as an “incidental feature of [their] main business activities” and those who cater for transient users.

Being defined as an account holder is not the only alternative, the society says. The definition of an internet service provider still exists in Section 92B of the principal Copyright Act. This section, headed “internet service provider liability if user infringes copyright” “specifically indemnifies those meeting the broader definition of internet service provider against civil remedy or criminal sanction caused by a user utilising their service to infringe copyright, providing said ISP complies with all requirements outlined in the Act,” says the Society’s submission. “This is very clear in law and we don’t consider this a subjective interpretation.”

However, it says, the law still requires some tidying up to make that presumed intent unambiguous.

UPDATE: Comment from intellectual property lawyer Rick Shera

"There is an argument there, I suppose," says intellectual property and ICT lawyer Rick Shera when asked to comment on the NZCS submission; but other people involved will doubtless have different views, he says. "The upshot of it all is that it's very confusing."

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