As is often the case with new laws there is not always a clear understanding of how it will be applied when it gets to real cases in court. Previously we've talked about the definition of an IPAP in the Copyright (Infringing File Sharing) Act, and now we're going to look into the definition of "file sharing".
The text of the Act defines "file sharing" in Section 122A(1) as:
file sharing is where—
- “(a) material is uploaded via, or downloaded from, the Internet using an application or network that enables the simultaneous sharing of material between multiple users; and
- “(b) uploading and downloading may, but need not, occur at the same time
Much of the Internet is designed in a way that content is simultaneously shared between multiple users, so does the new law apply only to peer to peer (P2P) filesharing or does it apply to any kind of sharing of content between people?
InternetNZ put this question to the Ministry of Economic Development who responded that by their interpretation it only covers P2P sharing. While this is useful, the view of the MED is not the only one taken into account by the courts.
Hansard, the official record of Parliament, is also used as a reference when courts need to understand the intent of a piece of legislation. The question of what is included was asked during the debate for the second reading of the bill:
JACINDA ARDERN: I would like to request the Minister, given that Hansard will be used as a record going forward in the way that this billis applied in practical terms, to give the Committee his view of the definition of “file sharing”, how he sees that definition being applied once this legislation is enacted and becomes law. For instance, does he believe that it includes an attachment to an email? How far does his view of this definition go? I think clarification from the Ministerwould be helpful for this debate.
Speaking for the Government, Hon Dr Nick Smith replied:
Hon Dr NICK SMITH (Minister for the Environment): I will also respond to the question from Jacinda Ardern about where in this bill the definition of file sharing is. It is quite simply set out in clause 7 of Part 1. That clause sets out quite clearly the definition of file sharing, and I further say that, yes, that definition does include an attachment that involves the sharing of files.
This appears to clearly state that the definition is not solely limited to P2P networks, but covers any method of sharing files, whether that be streaming, email, private or public locker sites, or any other method yet to be discovered.
Rick Shera has helpfully pointed out the following from the Select Committee's report:
We recommend that the definition of file sharing in section 122A(1) be amended by including reference to downloading or uploading material using networks or applications that allow material to be shared among multiple users. This would avoid inadvertently capturing activities such as emailing or downloading that did not involve file sharing; if such activities breached copyright, they would be actionable under existing provisions in the Copyright Act.
With MED believing one thing and the politicians who passed the law believing another, what is the truth of the matter? The answer is that we cannot know until it is tested in court (or clarified by a law change).