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Copyright Bill Roundup

Posted on November 4, 2010

A round-up of comments and information about the latest report on the Copyright (Infringing File Sharing) Amendment Bill.

First, the report of the Commerce Select Committee (PDF).

We found that the bill raised complex issues around the challenges faced by rights holders in an environment of rapidly-developing technologies, which are changing consumer expectations and behaviours. We have attempted to strike a balance between the rights of copyright holders to have their intellectual property rights protected, and the reality that the Internet has now allowed far greater access to copyrighted works through file sharing.


Commerce Minister Simon Power announces that account suspension will be suspended:

The bill, as referred to the committee, included the power for a District Court to suspend an internet account for up to six months, in appropriate circumstances. The committee has recommended that this power be included in the Copyright Act - as foreshadowed by the Government - but not brought into force unless the notice process and the remedies in the Copyright Tribunal are ineffective.

Techday describes the new elements of the Bill:

The measures include ISPs sending warning notices to their customers informing them they have infringed copyright, and extending the jurisdiction of the Copyright Tribunal to provide a fast track, low cost process to hear illegal file sharing claims. The tribunal will be able to award penalties of up to $15,000 based on damages sustained by the copyright owner.

Another key recommendation is that the notice regime will not apply to cellular mobile networks until August 2013.

Blogger David Farrar wrote a good summary of the good and bad bits of the Bill, pointing out how far it has come since the original:

I'm especially pleased that they have effectively shelved for now the termination provisions, as I thought that would set a bad precedent.

He also noted the worrying inclusion of section 122MA:

Now for the bad one – they have recommended that an allegation from a rights holder will constitute burden of proof which must be rebutted. This is dangerous. Google has given evidence that around 30% of the notices they have received in the US are false or incorrect. I think the Copyright Tribunal should be left to its own devices to decide if an infringement notice from a rights holder meet burden of proof.

Organiser of the original Blackout, the Creative Freedom Foundation, is also concerned about section 122MA, pointing out the lack of penalties for false accusations:

Alarmingly, the report recommends a return to Guilt Upon Accusation. This is despite hundreds-of-thousands-of people protesting against such a law in last year's Internet Blackout campaign. Rather than the presumption of innocence, there is a presumption of guilt under section 122MA. This is exacerbated by the lack of any sanction for false or malicious accusations, making the process ripe for abuse.

Rick Shera comments at his LawGeekNZ blog, noting among other things:

The Committee has strongly indicated that Copyright Tribunal include a punitive element in any awards it makes up the $15,000 limit. In other words, monetary awards (which go to rights owners) are not intended to be merely compensatory but to punish as well.

In a follow-up article, Rick then goes on to give an in-depth analysis of the legal issues around the new section 122MA:

a provision that creates a presumption heavily favouring the rights owner. Section 122MA - without any warning, no public consultation and out of kilter with the balanced approach that has gradually developed.

He concludes:

Section 122MA should be deleted. A statutory presumption of guilt is out of place, is unnecessary and has the potential to unfairly prejudice innocent account holders.

At Tech Liberty we discussed the definition of IPAPs, the committee's attempt to better define what types of entities should be responsible for their users. Unfortunately we didn't come to any conclusion:

Note that the definition of IPAP in other regards isn't Internet-specific, just that it provides "digital communications" between places of the user's chosing. It is somewhat bizzare it's broad-based in one clause and extremely technology-specific in another.

LIANZA, the Library Association, is concerned that libraries will be unreasonably responsible for the actions of their users, with the Committee choosing not to provide an explicit exemption:

The Amendment Bill still fails to make an adequate distinction between "users" and "account holders", and does not fully recognise that an account holder such as a library may have many thousands of users of the Internet services which it makes available.

InternetNZ notes that while the new version of the Bill is better while still containing some problems:

The Committee has done good work in addressing some other issues that were present in the draft Bill. Among other things, they have clarified definitions of 'Internet Service Provider', 'file sharing' and 'copyright infringement'.

Other issues remain problematic: our suggestion that section 92C in the Copyright Act be replaced by the same notice procedure set out in this Bill has not been taken up, and the Bill still leaves account holders entirely responsible for another person's use of their account even where they have no control over them.

Finally, on the political front, Clare Curran of the Labour Party defends the compromise that led to Internet account suspension being left in the bill, but in a suspended state:

This compromise means that termination of Internet access as an ultimate penalty for repeat copyright infringement remains in the Bill, but cannot be enacted unless the Minister makes the decision to do so.

She then goes on to underline the importance of the Internet:

We believe that Internet access is fast becoming as necessary to us in our daily lives as the provision of electricity, water and the telephone. However Internet access is not just a utility but also enables the provision of social and family connections across distances and time zones, education and work opportunities.

Green MP Gareth Hughes agrees with the importance of the Internet but is more critical on the topic of suspension:

The Green Party asserts that there is a danger in heavy-handed regulation for a problem that may only be a temporary result of new technologies upsetting traditional business models. The use of fines rather than Internet suspension is a more appropriate sanction for file sharing, and the punishments should be proportionate to the crime.

Citizens are not denied the right to use their telephones because they happened to be used in the commission of a crime, and this legislation should not set any precedent. Access to the Internet has become a necessity in an era when more and more public and private services are only provided online.

Posted by Thomas Beagle

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