From the Actrix Online Informer March 2009

The contentious new copyright clause

As readers may be aware, revisions to the Copyright Act – due to become law soon – are causing some concern both for Internet service providers and for customers.

The main bugbear is section 92A which reads as follows.

Internet service provider must have policy for terminating accounts of repeat infringers

(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.

We'll leave aside questions of whether this is a fair requirement to lump onto ISPs. After all, is your phone company required to keep a record of the prank or threatening phone calls you make and deal with you if you've been bad? Is your electricity company required to police your power usage to make sure you're not doing anything dodgy with appliances?

It seems most people, including the government, assume it is a fair requirement and the precedent is in place in that it is widely accepted that ISPs have the responsibility of protecting customers from spam and viruses, as much as it is in their power. ISPs seem to have accepted this.

There are a few other reasons for concern with this new clause, and they affect both ISPs and customers.

The Internet Service Providers Association (ISPANZ), for example, calls Section 92A "a poorly constructed law designed to force ISPs to cut off the Internet access of those accused of repeat infringement of Copyright.” They note that the Select Committee considering the original Bill rejected this approach, but the previous Government reinserted the clauses in a last minute action, "making New Zealand a guinea pig for experimental cyberlaw.”

ISPANZ is calling on the new Government to take corrective action. They say that under Section 92A, ISPs will have to disconnect organisations such as businesses, public libraries and government agencies as a result of accusations that an employee has used their computers for illegal downloading. The customer may be innocent, there may be an error, or the downloading may well have been done by a virus. Everyday Kiwis whose computers may have been inadvertently hacked may have their Internet access terminated.

This can be a real risk, especially to businesses that are very dependent on the Internet to function. They may find themselves being taken down through a wrongful accusation, or on the basis of one employee's downloading that they knew nothing about.

ISPs can find themselves in a terrible position.

ISPANZ President Jamie Baddeley says, "Under Section 92A We'll be damned if we do and damned if we don't. We'll be faced with dealing with an accusation, not proven, of a copyright infringement and making a very difficult judgment call. If we decide in favour of our customers, we risk being sued by global media powerhouses. If we decide in favour of the rights-holder and disconnect a customer from the Internet, we risk being sued by customers for breach of contract. Disconnecting customers goes against everything we do."

"The worrying thing is that it's not the ISPs that carry the bulk of the market that are targeted by copyright holders. It is smaller, more innovative ISPs, who are ill equipped to deal with a major legal battle."

Baddeley notes support on this issue from every major ICT group in the country, including the Telecommunication Carriers' Forum, The NZ Computer Society, The Telecommunications Users Association of New Zealand, InternetNZ, and others. Other groups, including a group of artists, have also come out against Section 92A.

Like most ISPs, Actrix recognises the benefits of copyright and believes in protecting people's intellectual property. However, we feel there must be a better way than asking ISPs to stop connectivity on the basis of accusation alone.

In response the Internet Society of New Zealand has released a draft code of practice aimed at clarifying sanctions against illicit downloaders of copyright works. It's 29 pages long and already copping a fair amount of criticism for being "legally opaque”. Copyright holders' representatives say it swings the balance too much back in favour of the customer.

We'll be keeping an eye on the draft code, and hopefully we can bring you an update on developments next issue.


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