Would still disconnect file-sharers, but power to do so would move from ISPs and copyright holders to the govt’s Copyright Tribunal.
Last month I mentioned how the New Zealand govt was slowly resurrecting a “three-strikes” plan to deal with accused file-sharers after deciding to scrap the plan back in March due to public pressure that such a plan would disconnect people without proper proof of copyright infringement.
Now the details of the revised proposal have been released by the govt, and despite public demands that Internet disconnection be taken of the table, it still remains. The only change of substance addresses “guilt upon accusation” concerns, where ISPs and copyright holders previously determined copyright infringement, so that now the govt’s own Copyright Tribunal makes the decision and metes out punishment.
The latest revision to Section 92a of the Copyright Act reads:
Phase 1- First Infringement and Cease and Desist Notice Procedure
Where a RH considers on reasonable grounds that there has been online copyright infringement of one or more of its works, RHs may invoke the
section s92A procedure by sending a first infringement notice to an ISP. The notice will contain sufficient details to allow the ISP to identify the subscriber
908455 – 906598 concerned. This notice must then be forwarded by the ISP to the subscriber.
If there is further copyright infringement by that subscriber, a RH may send,
via the ISP, a cease and desist notice. The subscriber will have an opportunity (30 days)
to reply to either notice by way of a response notice directly to the RH with
their name and contact details attached. Upon receiving a response notice, a
RH will be required to accept or reject it and inform the subscriber
accordingly.Phase 2- Obtain Copyright Tribunal Order
Where a RH considers on reasonable grounds that there has been further
(repeat) copyright infringement by a particular subscriber after a cease and
desist notice has been sent, and the subscriber concerned has been provided
with an opportunity to respond by way of a response notice, a RH may apply
to the Copyright Tribunal to obtain an order requiring the ISP to provide the
name and contact details of the alleged copyright infringer (the subscriber).Phase 3- Copyright Tribunal
A RH may then register an infringement complaint with the Copyright Tribunal
which will ensure that the infringement complaint complies with requirements
in statute/regulation. A RH may then notify the subscriber that an allegation of
repeat copyright infringement has been lodged against them. The subscriber
will have an opportunity to respond to the allegation and to elect to proceed to
mediation. The Copyright Tribunal will be convened unless agreed otherwise.
The Copyright Tribunal, in addition to available relief by way of damages,
injunctions, account of profits or otherwise, may consider ordering a
subscriber to pay a fine or an ISP to terminate the subscriber’s internet
account.
So by in large it’s a vast improvement over the previous version, but it still maintains the punishment of Internet disconnection, even if temporary.
“It is not like the French law; they can go back the very next day and re-sign,” says Tony Eaton, Director of the Federation Against Copyright Theft (NZFact), a branch of the MPAA. Eaton prefers the inconvenience of disconnection over fines.
If that’s true, and I can’t find any documentation to prove or disprove the claim, then why hassle with it at all? It seems pretty silly to waste precious court system resources on a day’s worth of punishment.
The Internet Society of New Zealand (InternetNZ), a non-profit organization dedicated to “unfettered access for all,” says the latest proposal is a mixed bag that tries to combine the benefits of a notice and notice approach with the toxic remains of a termination regime. Also, issues of ISP definition and safe harbor do not appear to have been addressed.
“The Phase 1 concept of notice and notice would provide useful education and likely result in a significant reduction of copyright infringement, as rights holders have found internationally,” says Keith Davidson, Executive Director for InternetNZ. “However, the procedures elevating through Phase 2 and Phase 3 create undue complexities and compliance costs for both ISPs and rights holders. While the decision to terminate Internet accounts is moved from ISPs and rights holders to the Copyright Tribunal, InternetNZ is disappointed that termination still remains one of the punishments.”
He argues that Internet disconnection was the primary reason for the Internet Blackout campaign back in February where websites “blacked out” and changed to a message saying the they had been taken down in protest.
““Nobody condones copyright abuse, but the termination of a household or business Internet account is simply out of proportion to the alleged offence,” adds Davidson. “The demand for this remedy comes from a subset of the music and movie industries who are pleading for special treatment they do not deserve. Such pleading has been faced down in France and in the UK and our Government should follow suit. Termination should be off the table.”
Davidson says to reduce abuse of copyright, the Government can implement a straightforward notice and notice regime, whereby those alleged to be infringing copyright receive a notice educating them about the problem.
“Overseas experience shows this cuts repeat infringement by around 70%,” says Davidson. “This fairly balances copyright rights holder concerns with the public interest in the ongoing development of an open and accessible Internet.”
The UK govt, in its similar pursuit to fight illegal file-sharing, has already deemed Internet disconnection as part of a “three-strikes” plan to be too “draconian,” preferring instead limited technical measures, i.e. bandwidth throttling, and notification.
France, on the hand, is still pursuing Internet disconnection, though the latest attempt gives the power to judges being that the country’s Constitutional Court called Internet access a “prerequisite for democracy.”
Stay tuned.
