In late 2006 the Government published a bill to update the Copyright Act. It was called the Copyright (New Technologies and Performers' Rights) Amendment Bill, and among other things it proposed to make ISPs safe from liability for transient copying (arguably illegal under the existing law), and allow people to format-shift music say from CDs to their iPods.
These were good things. Our Copyright Act had been passed in 1994 and did need to be updated. People were format shifting and the idea it was illegal was, frankly, nuts.
Unfortunately there was also a strange little clause, section 92. It did two things: it provided for a notice and takedown regime for hosted content that allegedly infringed copyright, and it provided for the disconnection of repeat infringers from the Internet by ISPs.
Notice and take-down is a bad idea. Basically if something on your website is alleged by a copyright holder to breach their rights, the ISP faces two choices: to take it down, or to pass the complaint to you and let you sort it out with teh rights holder. The first system is called "notice and take-down": if the ISP takes the content down, they are protected by the law from any liability. But if they don't take it down, they could be liable and have to pay damages if a law suit ensues.
InternetNZ, where I work, proposed notice-notice. This would have seen the complaint passed to the user, and remaining an issue between rights holders and users. We thought that was fairer, because ISPs should not be unpaid agents of the state in enforcing someone's private economic rights.
92A is the one that is attracting flack. The clause provides that ISPs have to have and reasonably implement a policy for the disconnection of repeat infringers of copyright. It does not say what a reasonable policy to do this is. It does not say what a repeat infringer is. And worst of all, it fails to link into the safe harbour provisions - so even if the ISP complies with it, they could in theory be sued by their customer, and have no protection - despite only doing so because the law requires it.
This is dumb. Malicious, commercial infringers will get around it. Ignorant home users who set up their wireless wrong and let people steal bandwidth might be disconnected. Parents who fail to monitor what their kids do on the net might lose access to the net.
We don't propose to ban electricity or phone accesss when people use them to infringe copyright. Why the Internet? It's a disproportionate response, and it piles the compliance responsibility onto ISPs once more, with no protection, no compensation, and so on.
Anyway, accepting the law exists, and that the government is not currently planning to repeal that clause (which they can do - it comes into force at the date specified in an Order in Council, which Cabinet could change at any time), what would a reasonable policy be?
- Disconnect as soon as an allegation arrives?
- ISP passes complaint on to the Police and allows them to investigate?
- ISP disconnects when a Court finds that someone is an infringer a number of times?
That code is now out for public consultation here: www.tcf.org.nz/copyright . It is trying to make the best of a bad law, providing a reasonably user-friendly approach to making this law function.
If you are exercised by this issue, you should read the code and make a submission by the due date. Pay particular attention to the fact that the rights holders are proposing to make themselves the people who decide whether your objection to any notice of infringement is valid or not.
If you are really exercised, you should write to John Key, Steven Joyce and your nearest National MP, asking them to defer the introduction of 92A or even better, repeal it.
I'll post some other time on the challenges posed to existing content producers by the rise of the Internet. At the heart of this dispute is an effort by rights holders to protect existing economic interests which aren't sustainable in a digital environment that allows perfect, free, instant replication of copyright material. Dealing with that is what we should be focused on, to develop new law and technology that lets people make a return on their creative work in this new environment.
And finally: no, I didn't as a Labour Party candidate criticise this in public on this blog last year. I made my views well known inside, and through my job did what we could to help on this, working hard with David Farrar and others in InternetNZ to try and push a re-think.
It is just two of the facts of life in party politics that a) things happen you disagree with, and b) you can't publicly criticise them. There is a degree of collective discipline in politics which is important: the alternative is an ill-disciplined rabble which would never have any political success. You stay involved if the fundamentals are right and if you are making more progress than not. You never find you agree with everything. You bite your tongue for the common cause.
When you are in opposition, though, there is more space to say what you think. So I make no apologies for highlighting this silly law now, and I make no apologies for keeping my mouth shut about it on the blog last year. That's life, and it's juvenile to think otherwise in my opinion.
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