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.

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.

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"!

In addition, I believe that there is no provision in the bill that guarantees that another established principal of law is upheld; that the accused party is entitled to see the evidence against them, thus providing the opportunity to defend themselves against the charges. For this bill to be fair to an accused party, they should be entitled to see any and all evidence which has been presented against them.

I am also disturbed by the general spirit of the Commerce Committee's comments around section 122MA. When it comes to legal proceedings, there should be no 'fast-track' (otherwise known as cutting corners) to benefit any individual or organisation, all parties should be treated equally and justly; the law must be impartial and favour no one party over another!

Also, while I am somewhat encouraged by the Commerce Committee's recommendation for the addition of section 122PA, where the bill's Internet account suspension provisions would be not immediately brought into effect, I am still opposed to the inclusion of Internet account suspension at all and once again renew my call for it's complete removal for the following reasons:

• For the majority of homes, businesses and other organisations in New Zealand it is highly likely that multiple people will access the Internet via a single connection / ISP account which is the legal responsibility of one person / entity.
• If a single person / entity is to be held legally responsible for the actions of others, it is not reasonable to expect this person to be aware of all Internet activity by all parties using the shared connection as it is neither fair, or even technologically feasible short of incurring excessive expense to do so, especially for personal Internet connections.
• There are a number of situations where unauthorised use of an Internet connection can occur without the knowledge of the account holder. The account holder should not be held legally responsible in these cases.
• Internet access is now a necessity for modern living and it's suspension should not be used as a deterrent.
• While I do not support it for the same reasons that I have listed above, the Commerce Committee has recommended that punitive damages be included in any awards to copyright holders. Should this recommendation be included in the bill, it will be more than sufficient as a deterrent and should be used as a substitute for Internet account suspension.

With Internet account suspension included, this amendment would seriously affect the viability of shared Internet connections and potentially expose innocent parties to unjust and unfair punishment due to the actions of others, over which the responsible party has no knowledge or control. In light of this, in situations where multiple parties are accessing the Internet via a single connection, this amendment should either not apply or other concessions should be provided in order to remove from, or dramatically reduce, the legal burden on a single, potentially innocent, party.

Yours Faithfully,

Sam Fickling

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.

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?

A recent article by Rob Weir does a good job of articulating what drives us. In How to Crush Dissent, he compares distributing information on the internet to the samizdat underground presses in the Eastern Bloc. He fears that our current anarchic level of information freedom could be temporary:

So, technology has not made dissent safer. We are merely fortunate that the political climes of 2010 permit more dissent. But if challenged, the powers that be have far greater tools to control information than they did in 1989. I am not certain the tools available to the individual come close to being able to withstand them.

He then talks about the importance of dissent, by which he means not just legally permitted free speech, but also the speech that is quickly banned in any totalitarian regime.

His fear is that as we move communication to the internet we are steadily developing the technological and legal tools - internet filtering, ISP tracking, laws against circumvention technology - that will give governments the ability to control what we do. His concern is that this will evolve until it is able to suppress dissent.

And I’m not an advocate of absolute free speech. There are copyright laws, there are privacy concerns, there are military secrets, there is child pornography. These all trump free speech. But I think that means that we make these activities illegal and vigorously prosecute those who break these laws. But we should be seeking the minimal technical means necessary to detect the violators, without introducing such technologies that, to the level of a mathematical certainty, eliminate the ability for these activities to take place. Because, if we do so, we also at the same time introduce mechanism that can be also used to crush political dissent.

At Tech Liberty we're not as pessimistic as Rob Weir but we think he is worrying about the right issues. It's important that we protect our traditional freedoms even as we modernise and update the ways we express them.

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.

1. Criminalisation - enforcement overkill

Criminalisation takes copyright infringement from civil law, where the aggrieved party can sue the offender in court for redress, to criminal law where the offender is arrested by the Police and can be punished by jail and fines.

The last version of ACTA required the parties (i.e. the signatory countries) to criminalise:

• infringement "on a commercial scale" or "for financial gain"
• recording a movie in a movie theater

This doesn't sound bad until you realise that "for financial gain" would include someone copying a DVD (because they now don't have to pay for one) and "commercial scale" could include using peer-to-peer file sharing where many people might download part of a file from one person.

Changes in latest draft

The latest draft of 2.14 (page 15 of the leaked draft) has added text that makes some attempt to define what "commercial scale" and "financial gain" mean, making it much more in line with what a reasonable person would expect from those terms. More importantly, the EU and US have proposed additional text that would explicitly exclude end consumers from being criminalised by this clause.

The curious obsession with people recording movies at the theatre still remains, although the European Union, Japan and Singapore wish to remove or significantly weaken this clause.

We believe that these changes, assuming they survive the drafting process, are a significant improvement and largely remove our objection to this aspect of ACTA.

2. Statutory damages - monetising justice

Statutory damages are where the law specifies the amount of damages to be paid to the plaintiff rather than letting a judge or jury make a determination based on the circumstances of the case.

We oppose statutory damages as they (a) are deliberately inflexible, (b) tend to be set too high, and therefore (c) encourage extortion by legal threats.

The original draft (article 2.2) had multiple competing proposals, some of which included statutory damages.

Changes in latest draft

The latest draft of article 2.2 (pages 6-7) includes the standard damages (compensation for injury to the rights holders and taking the profits of the infringer) but leaves the question of additional damages up to each country to decide.

New Zealand could choose to implement option C, "at least for copyright, additional damages", which matches current NZ law where the judge can decide, on the facts of the case, to add punitive damages.

This is a significant improvement and removes our objection to this part of the ACTA treaty.

3. Third party liability - blaming the innocent

Third party liability is the idea that people who provide tools or means that other people use to break the law should also be held liable.

ACTA stipulates that internet service providers (ISPs) should be liable if their users download pirated material (article 2.18.3). However, it does provide a limited set of protections for ISPs (a 'safe harbour') if they implement certain procedures, the nature of which are not clearly defined and still still appear to be the subject of negotiation.

Changes in latest draft

There are a number of changes to section 2.18 (pages 18-24) and, judging by the number of footnotes and bracketed options, there is still a lot of negotiation to go.

• There is still considerable disagreement around scope - whether third party liability should be only for copyright or also for patents, designs and trademarks.
• We are pleased to note that ACTA does seeem to have dropped the idea of graduated response (i.e. "three strikes and you're out") although this doesn't stop individual countries implementing such a scheme.
• There is also language that implies that people accused of infringing copyright can challenge the accusations before material is taken down (2.18.3(c)(i)).

In general it looks as though ACTA is moving in the right direction on some of these issues, with the treaty making more room for the individual countries to choose their own legislative responses within a very broad framework.

However there is still considerable cause for concern, not least that we disagree with the overall concept of blaming ISPs for the actions of their users.

4. Giving up customer information - lack of due process and privacy

The earlier draft obliges online service providers to hand over personal details of anyone accused of infringing copyright to the person making the accusation. We believe that this is a gross invasion of privacy and is an inappropriate grant of investigative powers to commercial groups.

Changes in latest draft

Section 2.18.3 (page 21) does not include the strong language of the earlier drafts.

There is a general clause that says that the parties will "encourage the development of mutually supportive relationships between online service providers and rights holders", which seems basically meaningless.

There is also a Japanese proposal to include provisions for forcing online service providers to give up details of subscribers but this power can only be exercised by the courts.

We are pleased to see that the original clause is gone from the ACTA treaty. We also have no objection to the Japanese proposal that service providers can be ordered by the courts to reveal subscriber information (assuming that there are appropriate safeguards).

5. Technological protection measures (TPMs) - taking away rights to use property

TPMs (technological protection measures) are digital locks used to prevent people using products they've bought in ways that the rights holder doesn't want them too. For example, the region coding on DVDs means that if you buy a DVD in one region you can't play it on a DVD player in another region.

The earlier draft prohibited the removal of technological protection measures as well as the distribution of products that are designed to do this. It explicitly says that this shall be a separate offence, irrespective of whether someone is doing this to infringe copyright or not.

Changes in latest draft

The relevant section 2.18.3 (page 21) is heavily adorned with footnotes and bracketed options. However, the general thrust of the clauses still shows that ACTA still intends to prohibit people from accessing the material they have purchased the rights to in the way that they prefer.

We oppose this and hope that the New Zealand proposal to exclude anything that controls access to a protected work for non-infringing purposes (e.g. you wish to watch your legally purchased DVD on non-authorised equipment) is included in the final text.

Conclusion

When looked at through Tech Liberty's civil liberties lense, the ACTA agreement is steadily improving. Of the five areas we highlighted in our last article, three of them have been substantially improved and some progress has been made on the other two.

However this should not be taken to mean that we believe ACTA is benign. We reject third party liability as being unjust and think that consumers should have the right to break technological protection measures (TPMs) in order to exercise the rights they paid good money for.

The lack of transparency around the negotiations continues to worry us. Luckily it seems to worry some of the participants too, judging by how quickly draft versions are being leaked. However, as citizens in a democracy we shouldn't have to rely on leaks to find out what our government is doing on our behalf.

Moving away from civil liberties, there are also major concerns about the inclusion of patents in what claims to be an anti-counterfeiting agreement and what this might mean for the availability of life-saving generic medicines.

Finally, we note that while ACTA is improving, we expect many of the same issues to reappear in the negotiations for the Trans Pacific Partnership. It seems that the rights-holders are prepared to keep banging away until they get the laws they want, therefore we will do our best to keep defending our rights.

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.

This is obviously strongly influenced by article 19 of the Universal Declaration of Human Rights and article 19(2) of the International Covenant on Political and Human Rights.

These were all described as coming out of a post World War II consensus about access to information called the "free flow paradigm". This is the idea that information should be unrestricted globally and was possibly a reaction to years of war propaganda and state censorship. The three principles of this are:

1. Freedom of information as foundational to free expression
2. The "free flow" principle
3. Mass media is essential to free expression and free information

This model was challenged by the NWICO paradigm that emerged in the late 70s. This saw that the free flow model gave too much advantage to rich companies and countries, and thought that increased government regulation was necessary to make access to information fairer.

The distinction between those two is is important when it comes to interpreting the NZ Bill of Rights - the framers were surely aware of these battles and chose the much less restricted language of the free flow paradigm. What does this mean for New Zealand? Jonathan Penney drew out two main conclusions:

• Open connectivity - the internet is an important means of communication and it is easy to see that s14 of the Bill of Rights includes a "negative right" to it. This means the government doesn't have to provide it, but also can't block people from it (in the same way that freedom of speech doesn't mean that the government has to give you a printing press).
• Open data - access to information ties into open government and democratic participation.

This then has the following implications:

• Access to different mediums is foundational to the right - you can't take away access to radio and print and say "Well, at least you've still got TV."
• State obligations to promote the free flow of information - the Official Information Act and open data.
• No distinction between citizens and big media for information rights.

Which in practical terms leads to:

• No internet account termination (as was in s92A of the Copyright Act).
• The restrictions in the Official Information Act should be read narrowly.

Disclaimer from Chris: "It goes without saying that these are a Law student's interpretation of the first bill and they don't pretend to give a comprehensive view of the provisions - so viewer beware. However I hope they may be helpful."

Click on each flowchart to view it full size.

The flowcharts

• Overview of section 122
• Handling alleged infringement
• Copyright Tribunal Procedure
• District Court procedure

Overview of section 122

Handling alleged infringment

Copyright Tribunal procedure

District Court procedure

• 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.