Quick guide to the new copyright bill
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.
Improvements
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.
Major problems
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.
Political support
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
- David Farrar does an excellent summary of the process.
- The Creative Freedom Foundation's original s92A Blackout campaign.
Letter to Simon Power About Copyright Infringement
Tech Liberty was a co-signer on this letter to Simon Power about the Copyright (Infringing File Sharing) Amendment Bill.
The three main areas covered by the letter and briefing are:
- Avoiding the possible reversal of burden of proof when people are accused of infringement (section 122MA).
- Account holder liability for shared internet connections when the account holder would have no way of controlling the users of the connection.
- Mechanism for activating the suspended "account suspension" provisions.
See our other articles about copyright issues in general and this law in particular.
Guest post: Letter to Mr Power re Copyright
Sam Fickling sent us a copy of his letter to the Commerce Minister, Simon Power, about the proposed changes to the Copyright (Infringing File Sharing Amendment) Bill. He has kindly given us permission to publish it here.
Mr Power,
Once again I believe that, for the most part, the ongoing modifications to the Copyright (Infringing File Sharing) Amendment Bill are improving the legislation and building a fair and workable framework with which to protect both rights holders and Internet users. However, the recent recommendation by the Commerce Committee to insert section 122MA into the bill has unfortunately brought the debate around this legislation back to where it started.
Originally, the main objection I, and many other individuals and organisations, had against the Copyright (Infringing File Sharing) Amendment Bill was the concept of 'guilt upon accusation'. While this concept had been removed from more recent drafts of the bill, it has made a return with section 122MA. I must re-iterate my original objections to the concept of 'guilt upon accusation' and the fact that this is in complete contradiction to the established laws and legal principles of New Zealand where accused parties are innocent until proven guilty! Furthermore, in established legal principles, the burden of proof lies with the accuser and this should most certainly not be reversed "in recognition of uncertainty about findings of copyright infringement"!
Replacing ISPs with IPAPs – How well have they done?
The Commerce Select Committee has reported back on the Copyright (Infringing File Sharing) Amendment Bill (PDF).
One of the problems in the drafting of such a law is how to define what an ISP is. The obvious approach is "provides internet services" but what about a cafe that gives free wireless access to customers? Or a university that provides services to staff and students? The problem is a lot harder than it looks.
The latest report suggests replacing the definition of "Internet Service Provider" with one for "Internet Protocol Address Provider" or IPAP.
This would avoid ambiguity and focus on the function of an Internet service provider that is relevant to infringing file sharing, namely the provision of Internet protocol addresses.
Of course, this does no such thing as anyone providing any form of internet service must provide an "Internet protocol address" to each person using it. It's inherent to the nature of an Internet connection and, once again, shows that Government isn't very good at technology. Edit: This may be trying to protect providers of low level services such as cabling and fibre.
However, when we look at the full definition, maybe it's not so bad:
IPAP means a person that operates a business that, other than as an incidental feature of its main business activities,
(a) offers the transmission, routing and providing of connections for digital online communications, between or mong point specified by user, or material of the user's choosing; and
(ab) allocates IP addresses to its account holders; and
(b) charges its account holders for its services; and
(c) is not primarily operated to cater for transient users.
A discussed, the inclusion of "(ab) allocates IP addresses" seems a bit unnecessary but overall the definition seems to hold up under scrutiny.
- Orcon and other ISPs would obviously be an IPAP.
- Cafenet supports both transient and account-based users. Should it be an IPAP?
- Universities and libraries would not be an IPAP because of (b) (there is no direct charging although student fees do include provision for services).
- Someone sharing a connection with their friends would not be an IPAP because of (b).
- Citylink would be an IPAP. (Should it be? See discussion in comments.)
- The local coffee shop would not be an IPAP because of (b) and (c).
- Would an Internet cafe be included? They do charge, the users vary between transient and regular.
- Mobile data from Vodafone/Telecom/2 Degrees will not be included for now, because a separate clause delays their inclusion until 1 August 2013.
How have they done? Please help.
Can you think of any cases:
- Where a person or company will be included as an IPAP that shouldn't be?
- Where a person or company that should be an IPAP won't be?
ACTA: Improving but problems remain
The ACTA treaty negotiation process is still going strong. The participants apparently feel pressured to finalise the agreement before the end of the year and have agreed to an extra negotiating round in Washington next week to help hurry things up.
The most recent leaked text shows that progress is being made on the details while some major disagreements (mainly around the scope of the agreement - should an anti-counterfeiting agreement also include patents and geographic indications) are yet to be resolved.
In our last summary article about ACTA we raised five issues where we thought that the treaty was a threat to justice and civil liberties.
Here we revisit them and find significant improvement in three of those issues and minor improvements in the other two.
Report on public talk: Open Connectivity, Open Data
Jonathan Penney, the Cyberlaw Fellow at Victoria University gave a public talk about the idea of "internet as a right" and whether there is any basis for this in current New Zealand law.
He started by looking at s14 of the 1990 Bill of Rights Act. This is about freedom of expression:
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
Flowcharts for the new Copyright (Infringing File Sharing) Bill
Chris Esther has created some useful flowcharts that help explain some of the processes included in the new Copyright (Infringing File Sharing) Bill. He has very kindly allowed us to repost them here.
A Week of ACTA
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.
Copyright Bill Roundup
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).