Changes to the Copyright Act, aimed at deterring illegalfile-sharing online, have come back from a select committee.
The controversial Section 92A, drafted by the previousLabour government, was sent back to the drawing board by the Nationalgovernment after it was decided the original law was unfair.
The Copyright (Infringing File Sharing) Amendment Bill,which replaces 92A, puts in place a three-notice regime to deter illegal filesharing.
The measures include ISPs sending warning notices to theircustomers informing them they have infringed copyright, and extending thejurisdiction of the Copyright Tribunal to provide a fast track, low costprocess to hear illegal file sharing claims.
The tribunal will beable to award penalties of up to $15,000 based on damages sustained by thecopyright owner.
The bill, as referred to the committee, included the powerfor a District Court to suspend an internet account for up to six months, inappropriate circumstances. The committee has recommended that this power beincluded in the Copyright Act – as foreshadowed by the government – but notbrought into force unless the notice process and the remedies in the CopyrightTribunal are ineffective.
This will enable the government to work with stakeholders tomonitor and review the situation and determine when a further deterrent may beneeded. It’s expected the issue will be reviewed in two years’ time, coincidingwith the five-year review of the digital copyright amendments that were passedin 2008.
Another key recommendation is that the notice regime willnot apply to cellular mobile networks until August 2013.
“This position is likely to change in the near future astechnology advances and mobile broadband prices go down,” Commerce MinisterSimon Power said.
Other recommended changes being supported by the governmentinclude:
- Clarifying that representative organisations can use the newmeasures on behalf of copyright owners (by aggregating instances ofinfringement), which will make the system both easier to use for owners andeasier for ISPs to administer.
- Redrafting the definition of file sharing to narrow itsscope.
- Enabling the Copyright Tribunal (or the District Court, ifinternet suspension is brought into force) to decline to make an order where itwould be manifestly unjust to the account holder.
Commenting on the changes, the Creative Freedom Foundation said it was “disappointedto see that Internet Termination is still making an appearance, and there is analarming return to the Guilt Upon Accusation”.
CFF Director Bronwyn Holloway-Smith said, “Temporarilydisabling Internet Termination just delays the problem because the governmenthas no independent statistics about infringement in New Zealand. This meansthat any decision to enable termination would have to be based on lobbying, andit could be enabled in Cabinet any week in the future – without a vote inparliament.
“Rather than the presumption of innocence, there is apresumption of guilt under section 122MA. This is exacerbated by the lack ofany sanction for false or malicious accusations, making the process ripe forabuse,” Holloway-Smith added.
CFF, however, noted some positive improvements – notably thedecision to revert back to the current copyright law's allowances of artisticreuse.
"Until New Zealand artists enjoy the same parody andsatire protections that Australian artists do, lawmakers must be careful toensure that fundamental existing public rights to access and remix our cultureare not impinged,” Holloway-Smith said.