New section 92A of Copyright Act does a far better job of balancing civil liberties and copyright enforcement.
Commerce Minister Simon Power released a statement revealing an intended framework and policy to replace Section 92A of the Copyright Act. This section, meant to come into force this year, was suspended after a broad coalition of rights holders, ISPs, and stakeholders opposed the original vague and ill-defined wording.
The original text of the legislation did not specify how it was to be implemented nor the process around how infringement should be handled. It burdened ISPs with the responsibility to negotiate with rights holders on a process and penalties, while dictating that they must implement account termination. It removed the right of the accused to defend themselves against the accusations and made ISPs both judges and executioners. Furthermore it made ISPs liable if they failed to implement these hazy requirements correctly.
David Zanetti, Tech Liberty, “Once negotiations on the original S92 framework had broken down between ISPs and rights holders, it was clear the legislation was not going to work. It provided no party with a fair and consistent process for handling the infringement of rights”.
At initial interpretation, the new intended framework corrects most of the problems identified and provides a fair and consistent process for rights holders to engage with ISPs and the courts to address infringement activities.
Tech Liberty is pleased to see the restoration of the courts as the only body which can impose penalties, and that the process retains the right to privacy, with ISPs passing notices back and forth rather than being obliged to give up account details to rights holders.
While disconnection is now a last resort, we are concerned that this remains an option as the Internet is a primary way for people to interact with civil society. There is also too much chance that disconnection will end up punishing more than the offender. The paper released today admits that there may be Bill of Rights implications with disconnection.
Thomas Beagle, Tech Liberty spokesperson, “While we will need to see the final wording of the legislation, the new process seems fairer and respects key civil liberties such as the right to a fair trial, something that the old legislation failed to do.”
Tech Liberty remains concerned that the Anti-Counterfeiting Trade Agreement (ACTA) will require further changes. While ACTA has not yet been publicly released, officials admit that New Zealand laws may have to be changed to meet ACTA obligations.
David Zanetti, Tech Liberty, “ACTA will have its own processes that could undo the progress here. We caution the Government that, having consulted the public to develop a better solution, it would be a mistake to take a step backwards because of ACTA.”
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