New Zealand Scraps “Three-Strikes” Law – For Now

Commerce and justice minister Simon Power says legislation needs to be revised to address additional public and govt concerns.

Following public outcry and the refusal of at least one ISP to participate, New Zealand Prime Minister John Key has announced the government will throw out the controversial Section 92A of the Copyright Amendment (New Technologies) Act that called for terminating the accounts of repeat file-sharers per a “three-strikes” graduated response system.

“Section 92a is not going to come into force as originally written. We have now asked the minister of commerce to start work on a replacement section,” the prime minister said.

It was scheduled to take effect on March 27th.

Section 92a reads:

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

“This legislation was put in place to combat unlawful file-sharing which facilitates copyright infringement on a large scale,” said the Kiwi Minister for Commerce Simon Power. “Section 92A traverses an important issue in an emerging area of copyright law reform both in New Zealand and internationally. “This behaviour is very costly to New Zealand’s creative industries and needs to be addressed.”

Mr Power acknowledged efforts by ISPs and rights holders to negotiate an effective policy for the section’s implementation, but noted that its effects on the public needs more consideration.”

Allowing section 92A to come into force in its current format would not be appropriate given the level of uncertainty around its operation,” he added. “These discussions have exposed some aspects of section 92A which require further consideration. While the government remains intent on tackling this problem, the legislation itself needs to be re-examined and reworked to address concerns held by stakeholders and the government.”

Google is one of the stakeholders who has voiced its objections to the proposal. In a submission to the New Zealand Telecommunications Carriers Forum, it noted that 57% of the DMCA takedown notices it has received over the years were sent by businesses simply targeting the competition, and that 37% of of the total weren’t even valid.

“Section 92A puts users’ procedural and fundamental rights at risk, by threatening to terminate users’ Internet access based on mere allegations and reverse the burden of proof onto a user to establish there was no infringement,” said Google in the submission. “Section 92A undermines the incredible social and economic benefits of the open and universally accessible Internet, by providing for a remedy of account termination or disconnection that is disproportionate to the harm of copyright infringement online.”

It’s the latter point that the Kiwi govt should really address. The Internet is vital for an informed populace in today’s digital age, not to mention its necessity for finding info on or registering for govt programs and services.

With newspapers closing and the town square increasingly turning to a virtual sphere of news and discussion online, permanently disconnecting users for swapping songs also means permanently disconnecting them from full participation in society. Is that a punishment that really fits the crime, or more importantly, is it a punishment we can really afford to dole out?

“I am confident that amendments to section 92A, which builds on the work of ISPs and rights-holders to date, will lead to a more workable piece of legislation,” Mr Power said.

We’ll see.

Stay tuned.