The Copyright (Infringing File Sharing) Bill is a replacement for the abandoned section 92A of the Copyright Act. It provides provisions for media companies to accuse people of infringing copyright, and for those people to be fined by the Copyright Tribunal. It also includes the penalty of disconnecting their internet - but this provision will initially be suspended.
The Bill went through one round of submissions (see ours) but the second reading was done under parliamentary urgency on the 13th of April and it is expected to be passed, still under urgency, on the 14th of April.
Updates: the bill has passed its third reading and will come into effect on September 1st, 2011. The Ministry of Economic Development is consulting on the regulations that will help with the administration of the law.
The Bill has some improvements over section 92A:
- It has replaced the overly wide definition of ISP (Internet Service Provider) with the idea of an IPAP (Internet Protocol Address Provider).
- The person accused of infringing copyright now has a chance to defend themselves against the accusations.
- It doesn't make ISPs responsible for making decisions about disconnection - they just have to pass messages between the accuser and the accused.
- It better respects the privacy of account holders.
But overall it still has some major problems:
- It makes the person whose name is on the internet account liable for all actions done by any user of that connection. Flatmates will be responsible for the people they live with, businesses will be responsible for their staff, parents will be responsible for their kids, librarians will be responsible for the users of their free internet terminals. Sharing your internet connection will put you at legal risk.
- It includes the idea that the Copyright Tribunal should believe the accusation from the media companies unless the account holder can prove it to be wrong. This is even when these accusations have been proven time and time again to often be substantially inaccurate. There are no penalties for making false accusations.
- It still includes internet disconnection as a penalty. Initially this provision will be suspended but it can be reactivated at the whim of the government. We oppose disconnection.
National, Labour and the Maori Party are voting in favour of the Bill.
The Greens are voting against it.
Tech Liberty articles about the bill
- Roundup of initial reactions to the bill
- Why we shouldn't accept the media companies accusations as true
- What is an IPAP and what are the differences between IPAPs and account holders?
- Revised section 122MA is no comfort
- Guest post - letter to Simon Power re copyright
- Our submission to the Select Committee.
- Flowcharts explaining some of the processes in the bill
Other articles of note
The fourth round of negotiations for the Trans Pacific Partnership (TPP) starts in Auckland today. Nine countries are meeting to develop a free trade agreement covering a wide range of goods, but it looks as though the copyright maximalists are using it as an excuse to push their extremist position yet again.
The leaked New Zealand position paper clearly indicates that some participants are trying to push a "TRIPS Plus" agenda - an extension of the internationally agreed provisions in the WTO's TRIPS agreement. This agenda, as seen in the South Korean and Australian free trade agreements with the USA, typically includes "three strikes and you're out" Internet infringement laws, punitive minimum damages for copyright infringement, and would also limit access to currently available generic medicines.
Thomas Beagle, Tech Liberty, "New Zealand has already dodged the bullet of "guilt upon accusation" when section 92A of the Copyright Act was overturned, and then again when public pressure fixed the intellectual property provisions in the ACTA treaty. It looks as if the TPP is yet another attempt to push laws that sacrifice civil liberties for media and pharmaceutical company profits."
Transparency in Treaty Negotiation
The TPP negotiations are being held in secret with citizens of the countries involved not allowed to know what their governments are saying. The traditional model for negotiating trade treaties means that the citizens of the countries concerned only get to see the text of the treaty after it's finalised, making any public consultation a sham.
Just like with ACTA, information is escaping and NZ's position paper on intellectual property has been leaked. It shows that the New Zealand government opposes a further extension of intellectual property rights saying that the economic arguments to do so are weak.
David Zanetti, Tech Liberty, "We're disappointed that we're reduced to finding the NZ government's position through document leaks. Why can't these position papers be published for everyone to see? It's not like they're secret from the other negotiating countries."
Tech Liberty believes that the TPP and other similar treaties should be negotiated in public in the same way that UN treaties are. While countries can keep their negotiating bottom lines private, the papers and drafts should be published for others to see. ACTA was originally going to be a secret negotiation but it was leaked - and we ended up with a better treaty as a result. See our full article.
Thomas Beagle, Tech Liberty, "Openness and transparency helped fix the ACTA treaty, we believe that negotiating in the open would improve TPP too. People have a right to be consulted and for that consultation to be meaningful it has to happen before the text is finalised, not afterwards."
Tech Liberty article calling for transparency in negotiating the TPP: http://techliberty.org.nz/acta-vs-tpp-the-case-for-transparency-in-international-treaty-negotiations/
Articles about leaked NZ position paper on IP provisions (includes links): http://www.scoop.co.nz/stories/PO1012/S00046/leaked-paper-nz-us-rift-on-intellectual-property-in-tppa.htm
Link to NZ position paper (PDF): http://www.citizen.org/documents/NZleakedIPpaper-1.pdf
About Tech Liberty
Tech Liberty is dedicated to protecting people’s rights in the areas of the Internet and technology. We make submissions on public policy, help to educate people about their rights, and defend those whose rights are being infringed.
ACTA (the Anti-Counterfeiting Trade Agreement) has shown us that openness when negotiating trade agreements leads to a better result – but it looks like this lesson that hasn’t been learnt by the negotiators of the TPP (Trans Pacific Partnership) free trade agreement.
At the beginning of the year Tech Liberty was involved in the campaign against the ACTA treaty. A major part of the problem with ACTA was that while we knew it was attempting to push more offensive IP laws, the secrecy around the negotiations meant we didn’t know what was in them.
Traditional Closed Model of Treaty Negotiation
ACTA followed the traditional model of negotiating a trade agreement (PDF), which goes something like this:
- A number of countries get together and decide to negotiate an agreement.
- The countries send their delegates to a series of meetings.
- The delegates discuss what sort of things will be in the treaty and come up with an agenda.
- Delegates present papers about particular topics.
- Work starts on a draft agreement.
- The delegates work through the draft removing points of difference.
- The text is finalised and returned to the governments for signing.
- In the democratic countries, the governments consult the people and then decide whether to sign the treaty or not.
- The governments make any required law changes and then sign the treaty.
You’ll note that the consultation with the people comes after the treaty text has been finalised. The process is structured so that there’s no chance that a government could consult, then come back to the negotiations and ask for more changes to be made (and indeed, this could be a bit chaotic).
We'll be writing some summaries of some of the relevant sessions at Kiwicon - the hacker conference in Wellington.
Anne Galloway from the VUW School of Design presented the keynote speech - RFID (in)securities. RFID tags are the tiny bits of circuitry that nearby scanners can read - such as used in Snapper cards and passports.
She brought a social anthropology view of RFID to a conference full of hardcore geeks and was brave enough to start by defining "discourse" and how it is used to create understanding. She then discussed three popular discourses around RFID:
- RFID is awesome
- RFID is evil
- RFID is fun
We've been writing about the ACTA (Anti Counterfeiting Trade Agreement) treaty for a while. We believe that copyright law and enforcement will need to change but also believe that everyone should participate in creating new laws, not just big business and their proxies. As such, we strongly objected to the secrecy around the negotiations and called for New Zealand to withdraw. We also made a submission to the Ministry of Economic Development about the digital enforcement provisions section.
The secrecy around ACTA caused problems for critics because, while much of the contents had been leaked, it was difficult to analyse the draft treaty without solid information. This all changed after the last meeting in Wellington, where global public pressure forced them to release the current draft (pdf) of the treaty.
Now we have the text to look at, were our fears justified? In this article we concentrate on some of the ways that the draft ACTA treaty encroaches on our civil liberties.
The ACTA countries have agreed to release the draft ACTA text after the latest round of talks conclude in Wellington.
This is an important victory for the principles of open democracy - our government shouldn't be negotiating treaties in secret that take away our rights.
It's going to be a week of ACTA in Wellington, New Zealand.
- On Saturday (April 10th) we have PublicACTA organised by InternetNZ. It's a chance for people who oppose ACTA to get together and discuss how to stop it. Guest speakers include Canadian law professor Michael Geist and Australian academic Kim Weatherall.
- Then, the following week (April 12-16th) there's the latest round of the official ACTA negotiations.
Why we oppose ACTA
- We oppose the attempt to take away people's rights (due process, freedom of speech, right to own and use property) in an attempt to protect the business models of the big media and pharmaceutical industries.
- We oppose the secrecy around the ACTA negotiations. Democratic societies should debate their laws in public.
- We oppose the way that the ACTA treaty is an attempt to legislate by treaty, avoiding the normal democratic process in each of the participating countries.
Tech Liberty articles about ACTA
- ACTA and the New Copyright Deal
- ACTA - The NZ Official Information Act Requests
- Media Release: New Zealand has no place in anti-democratic ACTA negotiations
- IP: Singing from the Same Songbook
- Tech Liberty's submission to the Ministry of Economic Development about digital enforcement in ACTA.
The Department of Internal Affairs has admitted that the internet filter is now operational and is already being used by ISPs Maxnet and Watchdog. It appears that Maxnet have not told their customers that they are diverting some of their internet traffic to the government system to be filtered.
Thomas Beagle, spokesperson for Tech Liberty, "We're very disappointed that the filter is now running, it's a sad day for the New Zealand internet."
The next round of ACTA negotiations starts on Tuesday in Guadalajara, Mexico. Representatives from each participating country, including New Zealand, will be talking further about what the Anti-Counterfeiting Trade Agreement treaty should include.
The New Zealand position
What will the New Zealand representatives be saying? Will they be supporting the inclusion of the new internet-related policies submitted by the USA at Seoul or will they be suggesting that the treaty should stick to the "counterfeiting" in its name and leave copyright for a more appropriate forum such as the World Intellectual Property Organisation?
Even so! Look! We live in a computerized world. I can't do a thing anywhere - I can't get information - I can't be fed - I can't amuse myself - I can't pay for anything, or check on anything, or just plain do anything - without using a computer.
- A Perfect Fit, Isaac Asimov, 1981
Why are we so interested in civil liberties? Surely they’re a luxury that we can’t afford in these economically depressed times, with war and terrorism on the international horizon?