The New Zealand Government has released a discussion document for public consultation that calls for more powers for the Copyright Tribunal.
The controversial Section 92A of the Amended Copyright Act was introduced by the former Labour Government last year and then suspended by the new National Government after public outcry and protests in March. The dicussion paper leaves termination of ISP customer accounts still on the table, with the difference being that the decision will lay with the existing Copyright Tribunal rather than rights holders requesting service providers to switch off access for internet users.
A three-phase process is proposed in the document: Phase 1 allows for rights holders to file complaints with ISPs, which in turn notify customers that they're accused of infringing copyright. If the infringement continues, rights holders can issue cease and desist orders via the ISP to its customers.
If a customer is deemed to have continued infringing on copyright after being issued a cease and desist order, a rights holder can apply for a Copyright Tribunal Order as part of Phase 2 of the process. The order requires an ISP to reveal the details of the alleged infringer to the rights holder who can then proceed to a Copyright Tribunal hearing.
Phase 3 allows customers to dispute infringement allegations through Response Notices within 30 days and the first complaint will lapse after nine months. If the matter goes in front of the Copyright Tribunal, the alleged infringer will have the opportunity to respond and also opt for mediation.
The Copyright Tribunal may order relief in forms of damages as well as fines and account termination for infringers. In order to take on its new responsibilities, the government says the Copyright Act of 1994 will have to be amended to extend the Tribunal's jurisdiction to cover the proposed process.
Intellectual property lawyer Rick Shera of Auckland firm Lowndes Jordan says that while the process outlined in the review was quite good, he has some initial concerns about the proposals. Shera says the document didn't define who or what counted as an Internet Service Provider — the current definition in the Copyright Act means most small- to medium-sized enterprises could be classified as ISPs, as well as libraries and other public service organisations.
Who would be classified as a subscriber under the proposal, questions Shera. It appears to be unclear whether or not a business or organisation would suffer the consequences of an employee or another user's alleged infringement. Shera says this was especially pertinent in instances such as shared Wi-Fi access.
Shera also notes that termination of internet users' accounts was left in the review, and pointed out that the safe-harbour provisions for ISPs have not been improved upon. Similarly, the inconsistency with Section 92c, an equally controversial clause in the new copyright law that forces ISPs to remove any material from their networks if it's deemed to infringe copyright.
Shera calls the proposed Copyright Tribunal extension of jurisdiction "a significant bureaucracy" being created, not only procedurally but also in enforcing remedies, and asks if a simpler approach would not be preferable. He believes a notice and notice regime that would not require any due process bureaucracy may achieve as good or almost as good a result. He further questions if the costs of the proposed measures could outweigh the supposed losses suffered by the rights holders' distribution channels. Shera notes that the Australasian Performing Rights Association has enjoyed year-on-year revenue increases over the past two years for instance.
Lobby organisation InternetNZ's executive director Keith Davidson believes Phase 1 was enough, and that the concept of notice-and-notice provides useful education that results in "significant reduction of copyright infringement". He says rights holders have found this internationally.
Going further with Phases 2 and 3 creates undue complexities and compliance costs for both ISPs and rights holders, Davison says, adding that his organisation is disappointed that termination of internet users' accounts is still one of the proposed punishments. This, Davison says, is simply out of proportion with the alleged offence, and is demanded by a subset of the music and movie industries who are pleading for special treatment that they do not deserve and which has been faced down in France and the UK. Davison says the NZ Government should also take termination out of the new law.
The discussion document focuses on the controversial Section 92A of the Amended Copyright Act that was introduced by the former Labour government last year and suspended by the new National government after public outcry and protests in March. Submissions for the review close by 5pm, 7 August.