Copyright liability a free-trade ‘bargaining chip’?

The "notice and take-down" regime is the style of remedy favoured by the US, while InternetNZ proposes the alternative "notice and notice" approach

InternetNZ has accused the government of giving away a potential free-trade bargaining chip by agreeing too readily to the American view on how to deal with internet intellectual property violation.

The point arose during a Select Committee hearing late last month on the Copyright (New Technologies and Performers’ Rights) Amendment Bill.

The bill, in Clause 53, proposes to make an ISP that hosts content for a user liable for any copyright infringement in the hosted material if it “knows or has reason to believe that the material infringes copyright in the work; and does not, as soon as possible after [becoming] aware of the infringing material, delete the material or prevent access to it.”

This is known as a “notice and take-down” regime and is the style of remedy favoured by the US and some other jurisdictions. It requires the ISP essentially to take any complaint made at face value.

InternetNZ, in its submission on the bill, proposes an alternative “notice and notice” approach, similar to that used in Canada.

When the ISP receives a copyright infringement complaint it passes it on to the customer who posted the content. If the customer agrees the material is taken down. If not, the ISP puts the copyright owner and the customer in contact with each other and backs out of the discussion, leaving the two parties to reach a decision.

If “notice and notice” were written into the amended act, then adoption of the US position at a later date might be something New Zealand could offer during free-trade negotiations, suggested InternetNZ vice-president David Farrar.

The National Party’s number 3, Gerry Brownlee, locked horns with Farrar accusing InternetNZ of absolving ISPs of any “duty of care”; Farrar, pointing out that ISPs would accept the task of passing on the complaint, went on to suggest that too rigid a regime would imperil creative adaptation of works. The maker of a parody of the Lord of the Rings movies should not be held liable for using five seconds of the original movie.

“I have a nice front lawn,” Brownlee retorted. “If you want to come and use it for five hours, am I obliged to let you?”

Farrar protested that there is a difference between physical and intellectual property, but both parties turned aside from a deeper discussion of that knotty question.

Farrar, however, managed to get in a barb about a case involving the Church of Scientology, where many believe an accusation of copyright infringement — through the quoting of Scientology briefing documents — was used to muzzle free speech.

InternetNZ also argued against having to go to the copyright owner or an “approved” third party such as a library, to circumvent a technological protection mechanism in order to engage in “permitted use” of material (such as quoting brief passages for the purpose of review or comment).

There should be a blanket permission for circumvention in such a case, with the burden of proof on the owner to demonstrate illegal use of the material, Farrar said.

Earlier in the hearing, representatives of the recording industry battled against the format-shifting exemption that would permit purchasers of CDs to make a copy for use in, say, an MP3 player.

It was suggested that the owner should be required to keep the original CD — otherwise it could be copied and the original gifted to a friend, who could in turn copy it and pass it on, in a potentially endless process.

The industry representatives also suggested a need to restrict digitally “streamed” sound and video recordings, which could be picked up and copied.

Currently available tools permit an internet-wide search for a required work by its metadata, they said.

Champions of the right to copy, by contrast, protested at the two-year sunset clause on the format-shifting right and the restriction of the format-shifting provision to sound recordings only.

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Tags copyrightISPintellectual propertyinternetnz

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