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Monday, 10 August 2009 09:39

InternetNZ brands proposed NZ copyright law as "too costly"

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InternetNZ says proposed new legislation designed to deter and prosecute illegal downloads of copyright content would see the creation of an expensive and bureaucratic system that would add costs for government, ISPs and rights holders.

Submissions closed last Friday for the New Zealand Ministry of Economic Development's review of the controversial section 92A of the Copyright Act designed to enable copyright owners, via ISPs to prevent or deter broadband users from illegally downloading copyright material.

The Government's first attempt at new legislation to achieve this goal met with such a strong response that the Government was forced to scrap the proposal and go back to the drawing board. That legislation would have required ISPs to terminate users' Internet access based on allegations that they had illegally downloaded copyright material.

The Government has instead proposed a scheme with a three phase approach, and invited submissions that were due on 7 August.  A ministry of Economic Development spokeswoman told iTWire that a summary of submissions received would be posted on the website of the Ministry of Economic Development later in the week, but was unable to provide more details.

Under phase 1 of the government's new proposed legislation a copyright owner would be able to send a first infringement notice to an ISP containing sufficient details to allow the ISP to identify the subscriber concerned and the ISP would be required to forward the notice to the subscriber. If there was further copyright infringement by that subscriber the copyright owner would be able to send, via the ISP, a cease and desist notice. The subscriber would then be able to reply to the copyright owner, with their address details and a response to the allegation, which the copyright holder would be required to accept or reject.

If the copyright owner believed there to be ongoing infringement by a subscriber it would be able to apply to the Copyright Tribunal to obtain an order requiring the ISP to provide the name and contact details of the alleged copyright infringer. Then  if the copyright owner and infringer were unable to resolve the issue themselves, or by mediation, the Copyright Tribunal would be called upon to determine the outcome and could impose damages, injunctions, a fine or termination of the subscriber's Internet account.
InternetNZ believes this system would impose costs that would outweigh its benefits and proposes instead a 'notice and notice' systems which it says has been shown to work successfully in other countries. In particular InternetNZ says that it regards Phase 2 and Phase 3 as "unnecessary, unlikely to contribute much to reduction in copyright infringement, and likely to incur significant costs for Government, ISPs, rights holders and users."

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"The Government's proposal would see the creation of an expensive and bureaucratic system involving the Copyright Tribunal that would add costs for government, ISPs and rights holders," said InternetNZ deputy executive director, Jordan Carter. "A notice system should instead be implemented and its results assessed. We anticipate that it will be cost-effective and obviate the need for costly and complex procedures that will not deliver corresponding benefits."

He added: "InternetNZ reiterates in its submission its absolute opposition to termination being a remedy for copyright infringement by New Zealanders. Termination is an inappropriate and disproportionate remedy that will not work. Whatever approach the government takes to replacing section 92A, termination must be off the table."

InternetNZ is instead proposing that ISPs be required to send a series of notices and to maintain anonymised records enabling them to identify frequent infringers. "If rights holders became convinced of significant infringement by the customer or customers of a particular ISP, they could apply to the Courts for the release to them of the customer details of the most frequent infringers of their rights." Having got this information it would then be up to the rights holders to pursue the subscriber for alleged breach of copyright under the existing legislation.

In Australia ISP iiNet is facing a court challenge from AFACT, representing a number of movie houses, with AFACT alleging that iiNet failed to do sufficient to prevent illegal downloading by its customers when informed of breaches by AFACT.  However iTWire understands that iiNet was provided only with IP addresses from which the alleged offences occurred - which cannot be tied unambiguously to a particular individual, and further that, without an interception order from a court iiNet says it cannot examine the data streams of individual customers to identify material likely to be copyrighted.

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