Draconian New Zealand Copyright Law Foundering?

Major player TelstraClear withdraws its cooperation

Update! See follow-up article: Draconian Internet Copyright Law Dead, Or Is It? March 23, 2009

On 16 February 2009, I wrote about the New Zealand Copyright Act (Section 92A) in Guilt On Accusation - Draconian Internet Copyright Law To Be Enacted. This law would allow American and New Zealand film and music industries to pressure Internet Service Providers (ISPs) to terminate any individual or business users solely on their say so.

On 23 February, the New Zealand government suspended Section 92A which had been scheduled to become active on 28 February. For months, the ruthless law has been under fire from many quarters—not the least of which are some of the ISPs themselves.

Members of the Telecommunications Carriers’ Forum (TCF) a New Zealand organization which develops standards and codes of practice for the New Zealand telecommunications industry, have spent many weeks trying to draft a Code of Practice dealing with the implementation of Section 92A: That Code of Practice needs a unanimous vote to pass TCF's board.

Now TCF member and New Zealand Internet Service Provider giant TelstraClear have stated they will veto the code, saying:

"TelstraClear considers that there is a fundamental problem with the TCF being a party to any code of this nature, which is that the code would be based on flawed legislation… In TetstraClear’s view, any industry code would simply be an attempt to tidy up poorly drafted legislation. TelstraClear does not consider this to be the responsibility of the TCF. Indeed the best outcome would be if s92A was repealed. Failing that, it should be amended to address the above concerns."

InternetNZ, the group which oversees the Internet in New Zealand—including the management of the .nz domain name system—says implementation of Section 92A will be impossible without TelstraClear's participation:

...TelstraClear’s decision not to support the Telecommunications Carriers’ Forum Copyright Code of Practice means the Government should promptly repeal Section 92A of the Copyright Act.

“Executive Director Keith Davidson notes that the TelstraClear decision means the TCF cannot now implement the Code.”It is clear that the agreement that the Government sought will not now be reached between ISPs and rightsholders. To attempt to bring 92A into force now would invite disaster,” Davidson says.

“The problems with the Code have come to a head because the Government made the future of Section 92A dependent on agreement between a limited group of rights holders and a small number of ISPs.

“What about everyone else who is affected? Section 92A applies to any business that provides Internet services to its staff or hosts a website, and can be triggered by any rights holder or claimed rightsholder with a genuine complaint or a malicious axe to grind,” says Davidson.

The University of Auckland has expressed its concerns:

"The main problem is in Section 92A of the Copyright Act which we believe should be removed from the Act or, if it is to remain in some form, then substantially redrafted with input from stakeholders as would have happened during a select committee process."

"The activities of a university also make use of third party copyright materials. These activities could be seriously affected by copyright notices from rights owners demanding the termination of the accounts of a staff member or a student who has legitimately downloaded material under the fair dealing and education provisions of the Act or under the many licences [sic] the University holds to copy and use third party copyright materials. Universities largely have processes and penalties in place to deal with any copyright infringement by staff and students, but these may or may not incorporate the termination provisions. The requirement to terminate accounts or comply with a Code which cuts across those policies threatens institutional autonomy. A university may face unreasonable compliance costs and procedures if it adopts the Draft Code."

Judge David Harvey, former Chair of the New Zealand Copyright Tribunal and author of Internet.law.nz - Selected Issues
has this to say:

"[Section 92A] is poorly drafted and makes a number of unsupported assumptions, but in essence it suggests that an Internet service provider must develop a policy to cancel an existing contract as a result of copyright infringement.

"The reality of the matter is that the cancellation or termination of the contract arises at the behest, not of the Internet service provider, but of copyright owners. Without significant justification in normal circumstances this could amount to an interference with economic relations and raises significant issues about the sanctity of contract... section 92A is unnecessary and gives rise to a situation where a person may be deprived of rights under a contract without proper legal process."

Google voiced its objections in a 6 March 2009 document to TCF:

“Google has a number of concerns around the new section 92A and the impact the section 92A obligation is likely to have on the balance of interests served by copyright law:

"Section 92A undermines the incredible social and economic benefits of the open and universally accessible Internet, by providing for a remedy of account termination or disconnection that is disproportionate to the harm of copyright infringement online.

"Section 92A puts users’ procedural and fundamental rights at risk, by threatening to terminate users’ Internet access based on mere allegations and reverse the burden of proof onto a user to establish there was no infringement. In Google’s experience, there are serious issues regarding the improper use and inaccuracy of copyright notices by rights holders.

"Section 92A could impose significant burdens on ISPs, as it threatens to require enforcement of policies based simply on rights holders’ allegations of infringement."

There are those who maintain that the withdrawal of TelstraClear sounds the death knell for Section 92a, but the New Zealand parliament is still debating courses of action.

The bottom line in all this is that no one—anywhere—should be deprived of their civil rights, of due course of law, particularly when the accuser is a private party with an agenda but no clear evidence of an internet user’s wrongdoing.

The battle for New Zealanders’ civil rights continues.