Kiwiblog

I’ve blogged in the past on ACTA, the Anti-Counterfeiting Trade Agreement. Readers will gear a lot more of this in the next month, because the next meeting of the ACTA negotiators is in Wellington in April.

There are two major issues around ACTA. The first is that the negotiations are secret, and this has even upset the EU Parliament:

Wary of the lack of openness surrounding the Anti-Counterfeiting Trade Agreement (ACTA), virtually representatives of the EU parliament have banded together, voting 663 to 13 in favour of passing a resolution that would require the EU Commission (who are the EU’s representative in ACTA negotiations), to share all information about ACTA talks, and to refuse to support any Internet disconnection penalty for online copyright infringement.

The resolution is very specific and blunt about the EU Parliament’s displeasure with the lack of transparency around EU ACTA negotiations, citing concerns over the “lack of a transparent process in the conduct of the ACTA negotiations”.

The second is the concern that ACTA may force countries that ratify it, to legislate for Internet disconnection for people accussed or found to have infringed copyright.

Now, all trade agreements are negotiated privately, but whether an agreement on copyright law should be seen as a trade agreement is a big issue – most IP agreements are not. Many countries would like to be more open about ACTA, but the rules of trade negotiations are that you need unanimous permission to agree to anything – including releasing information. So just one country, such as the US, can block the release of the draft text.

I’ve attended two meetings (in my role with InternetNZ) with officials from MFAT and MED, and have to say I am impressed with their willingness to engage, within the limits of what they can say. They have consistently said their position has been that ACTA should not require NZ to do anything beyond its current law (including the replacement S92A). However they can not tell us what has been proposed by other countries, and the concern is what pressure there may be to get an agreement in the final stages.

What the Government has done is asked for public submissions on “enforcement of intellectual property rights in the digital environment”. If you have concerns about ACTA, you should take a few minutes to make a submission and state what is and is not acceptable to you. Topics include:

• Liability of ISPs for third party infringement
• Safe Harbour provisions for ISPs and associated conditions
• Identifying Infringing Users
• TPMs (Technological Protection Measures)

Now despite the ACTA negotiations being secret, a draft text has been leaked. And, assuming it is accurate, it shows the New Zealand negotiators in a pretty favourable light – opposing some of the more undesirable aspects.

Nathan Torkington covers this in a blog post. His summary:

On the balance this bit isn’t too bad–New Zealand is a good voice for sanity in the negotiations.

I was pleased to see from the leaked draft, that the official position of the NZ negotiators, was very much in line with the informal indications they had given. It is ironic that we can only verify this, because someone leaked a draft.

Now as I said the next round of ACTA, and the round most likely to be discussing the Internet section, is in Wellington from 12 to 16 April. I am hoping the organisers will allow an opportunity for some sort of public forum or dialogue with negotiators, and this request has been made.

InternetNZ has organised a PublicACTA conference on Saturday 10 April, which will allow interested people to debate the issues, form positions, and report them to the main ACTA negotiations the following week.

And in a further announcement, the keynote speaker will be Professor Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa in Ontario. Michael is a real expert in this area, and a great advocate for balance in copyright laws.

I would recommend people attend, just for the chance to hear Michael. And if you wish to stay up to date with what is happening, I recommend this ACTA coalition site.

Taken from Geekologie. People may also like this similar link, on trying to use an e-book.

Simon Power introduced this week the bill to amend and replace the S92A copyright law. It is called the Copyright (Infringing File Sharing) Amendment Bill.

As I blogged at the time, the Government’s Cabinet paper on the new law wasn’t bad, and a big improvement on the existing S92A. There are still provisions I don’t agree with, but the worst aspects were gone.

The draft bill is actually, in my opinion, a slight improvement on the Cabinet paper. The Cabinet paper had a number of potential fish-hooks in it – such as the possibility one could get multiple infringement notices, for alleged infringing that occurred at the same time. InternetNZ detailed to the Minister a number of these fish-hooks, and it is pleasing to see that officials (and presumably the Minister) took account of these in drafting the bill.

Pat Pilcher in the Herald comments:

Under the new bill, offenders will receive three warnings. First a detection notice, which is then followed by a warning notice should the internet subscriber be accused of infringing copyright again.

An enforcement notice is finally issued that could see third time infringers being fined up to $15,000 or have their internet disconnected for up to six months.

Giving credit where credit is due, the Bill does incorporate time frames within which subsequent infringement notices cannot be sent, giving accused infringers time to amend their copyright infringing ways.

As I said previously, this is a quite important thing. Generally there is a gap of three weeks  from the first “strike” until any alleged infringing can count for a second strike and so on.

The new bill also allows accused for copyright infringers who feel they have been unjustly accused to apply to have their case heard by a Copyright Tribunal at no cost.

This is definitely a good thing as the scope for wrongful accusations is potentially massive. Take, for example, the number kiwi broadband users using of Wi-Fi broadband routers.

Yes, that is good that you do not have to pay to defend yourself. Also your identity is protected, unless you are found liable.

ISPs are also going to be burdened with the costs under the new bill. Matching internet subscribers to IP addresses supplied by copyright owners, and keeping track of the three strike process is, at best, going to be a deeply complicated undertaking and likely a costly nightmare as well.

While some of these costs will be met by copyright holders paying to lodge infringement notices, most ISPs will be left with little choice but to pass costs onto their subscribers.

The level of fee which ISPs can charge is likely to be set by regulaton. It is a concern that the fee will probably only cover their variable costs of each notice, and not the very large one off capital costs of reconfiguring their systems to record such info.

While copyright owners can ask for repeat infringers to be disconnected, they must do so through the courts and disconnections will last for up to six months.

This is good in that courts are geared up to hear both sides of any infringement argument and will bring some much needed legal rigour where it was lacking in the previous bill.

I don’t think termination is an appropriate penalty, plus it will largely be ineffective. But having said that, I welcome the fact it can only be done by a court after due process.

Whilst the Copyright (Infringing File Sharing) Amendment Bill represents a step in the right direction (especially when compared to the original bill), it still incorporates some serious flaws.

Worse still, it could prove ineffectual as most serious infringers are will utilise encrypted virtual private networks to avoid detection by copyright holders.

I think there will be a fairly big drop in copyright infringing downloads (and that is not a bad thing), resulting mainly from people receiving an alleged infringement notice. Overseas cases have indicated over 50% of people stop downloading such material if they receive such a notification.

Those that carry on regardless tend to be very dedicated, and will probably just move to networks which hide their IP addresses.

I hope all parties in the House will support the bill at first reading, as it is a big improvement on the status quo. Once it hits select committee, I will encourage people to make submissions to improve the bill further.

ZDNet reports:

Australian ISP iiNet was today announced as the victor in its long-running defence against a lawsuit by major film and TV studios represented by the Australian Federation Against Copyright Theft (AFACT).

The studios first dragged iiNet into the Federal Court back in November 2008, arguing that the ISP infringed copyright by failing to take reasonable steps — including enforcing its own terms and conditions — to prevent customers from copying films and TV shows over its network. …

The studios were trying to make ISPs liable for what their users did, and force them to be unpaid sheriffs and terminate users on the basis of unproven allegations from the studios.

The court ruling is very strong – it says that iiNet did not sanction, approve or countenance copyright infringement – they simply did no more than provide an Internet service to its uers.

The court also said “iiNet is not responsible if an iiNet user chooses to make use of that (BitTorrent) system to bring about copyright infringement.

This is the first ruling of its kind in the world on whether ISPs can or should be liable for what their customers do, and if they have a duty to stop them. Hence it may prove to be a very useful precedent in future.

The Government has released their proposals for S92A, and I have to say that the proposal is not too bad. Some aspects not great, but some aspects are pretty fair.

The press release has a Q&A, but I recommend those interested read the full Cabinet paper.

My initial thoughts are:

Good:

• Three notices needed within 9 months to go to Tribunal
• Users can stay anonymous and send response via ISP
• Users remain anonymous at Tribunal stage unless they lose
• Notices must be sent to ISPs within 20 days of alleged infringement, so a huge number can not be collated over months and then piled into an ISP
• Rights holders will have to pay a fee per notice, to cover their admin costs in issuing the notices
• Termination/Suspension is an option only for courts, not the tribunal (or ISPs)
• Termination is defined as suspension of that account for up to six months so law is clear
• A new definition of ISP to be drafted for S92A only, which will be narrower then current definition which includes employers, bloggers etc.
• ISP given statutory protection where they comply with the Act and any court orders
• Law not to come into effect until six months after amendments passed
• 92A to be available for P2P infringing only, and material under 92C excluded from gambit of 92A

Not so good:

• Time between 1st and 2nd notice can be as little as 10 working days and 10 again between 2nd and 3rd. That means you can get to strike three in a month.
• The fee rights holders pay to ISPs is set by Govt and will not include capital costs of modifying systems
• No sanctions on right holders for false notices
• Termination/Suspension is still an option

Overall I have to say a huge improvement over the original 92A, and even a slight improvement over the discussion proposal.

I do think some further changes are desirable, and if a bill appears based on the paper, will submit for changes at select committee level.

A critical issue will be the level of the notice fee – too low and it will not provide a incentive for rights holders to be restrained in their allegations, and also it may not properly compensate ISPs for their costs.

I think the major change needed is the time frames for notices. They need to be such that a notice has to be based on an infringement that has occurred after one is sure they have received the previous notice. At present it does not do that. You should only get to strike two, if you have clearly continued infringing after receiving the first notice, and likewise strike three should only occur, if you continued after receiving the second notice.

But overall as I said, this is not too bad. Simon Power and officials have done a pretty good job in a complex area. But again that is not to say some further enhancements are not desirable, and I am looking forward to further engagement in the process.

I’m getting nervous on the copyright front.

I was pleased the Government suspended the introduction of the “guilt upon accusation” S92A.

I was also pleased with their proposed policy replacement, that came out on 7 August. Didn’t agree with everything in it, but it was a lot better than the law passed by Judith Tizard. So far so good.

Submissions closed on that document on 7 August – that is four months ago. Most of the submissions were supportive.

So why I wonder has the Government not released its final proposed policy?

One reason I can think of is that they are getting furiously lobbied by United States lobby groups demanding changes to the proposed policy. We know the US MPAA had a Vice-President out here. I was pleased he only got to meet with officials, and not the Minister, but it would be naive to think such lobbying has no impact.

I hope I am wrong, and what emerges is at least as satisfactory as what was in the proposed policy. But why has it been four months with no news?

And then we have the ACTA (Anti-Counterfeiting Trade Agreement) which could remove our ability to determine our own laws in this area. Let me quote Peter Dunne and Clare Curran on this:

Peter Dunne said:

UnitedFuture leader Peter Dunne has called on the Government to release details of the recent international negotiations on the Anti-Counterfeiting Trade Agreement.

“There is a lot of conjecture about the contents of ACTA and what it will mean for the protection and enforcement of intellectual property and copyright law here in New Zealand,” said Mr Dunne.

“The veil of secrecy surrounding the contents of the ACTA agreement is causing a lot of concern not only here but also among the other nations involved.”

Indeed. And there are conflicting reports on what ACTA covers. Some say it is large scale commercial piracy. Other say it seeks to mandate S92A type laws for everyone.

“It is in the public interest for the Government here to be as transparent as possible over ACTA.”

“While we have been told by Mr Power that the negotiations bear no relevance to the issues around the review of S.92A of the Copyright Act, many people are nervous that this is what has held the current review up.”

“A simple disclosure of the terms and text of ACTA negotiations would allay any misplaced anxiety while also giving New Zealanders the opportunity to voice concerns they may have.”

“Mr Power was quick to listen to New Zealanders over S.92A and scrap Labour’s unjust law; I encourage him to do the same over ACTA,” said Mr Dunne.

It would be great to both have the ACTA text made public, and also to be told what is causing the delay in the review of S92A?

Clare Curran has also said:

In the interests of transparency and public interest, the New Zealand Government should reveal the text of recent secret discussions in South Korea on the Anti-Counterfeiting Trade Agreement (ACTA).

Clare has also blogged a transcript of questions about ACTA at a select committee.

The official says:

On the section 92A question that you ask, the answer is difficult to give. I just do not know how the United States is going to approach this issue, either in TPP or in ACTA as yet, in that they have not come to a definitive negotiating position even in ACTA. It is also very early days, as you know, internationally in terms of putting place these kinds of provisions, and a lot of people are looking at New Zealand in terms of how we do it and whether we can provide something of a model for others to follow. The strong hope that we would have is that the kinds of provisions that we are going to recommend shortly—and that, hopefully, the Minister will propose shortly to Parliament—will be enough in terms of any further concessions sought from us from the United States, etc. I think that in terms of the kinds of bases that the US wants hit, we will hit them but we will still have enough safeguards to protect the interests of users as well as owners.

That to me suggests that what is acceptable to the US, is a factor in the review of 92A.

Now I am a fan of an FTA with the USA. But I’d rather not give them everything they want before we even negotiate an FTA. Hell, we might be able to get rid of some lamb tariffs if we don’t bend over prematurely.

The official also said they hope for an update on S92A before Xmas. Not many days to go.

Also people interested in this issue might be interested in Kiwiright – a 12 minute documentary about the fight against S92A. It is embedded below.

© kiwiright from nu4mz on Vimeo.

The Herald reports:

Brits who illegally download music from the internet also spend more money on music than anyone else, according to a new study.

The survey, published today, found that those who admit illegally downloading music spent an average of 77 pounds ( NZ$176) a year on music –33 pounds more than those who claim that they never download music dishonestly.

So illegal downloaders spent almost twice as much as those who don’t download.

I’ve never downloaded music myself, but talking to those who do I gather that many of the downloads are to try before you buy. Now that is not an excuse for breaking the law, but it means that when you hear that 19 out of 20 songs are downloaded illegally, that does not mean sales would be 2000% greater without such downloads.

The findings suggest that plans by the Secretary of State for Business, Peter Mandelson, to crack down on illegal downloaders by threatening to cut their internet connections with a “three strikes and you’re out” rule could harm the music industry by punishing its core customers.

Ironic.

Chris Keall at NBR reports:

In the US, some of the biggest tech buzz of the year has been generated by Spotify, an online music service that lets you stream an unlimited amount of songs via the internet each month, for a set fee, rather than buy tracks or albums individually on the iTunes model.

Last month, a similar service was launched in Australia, called Bandit.fm.

Now, Bandit.fm is set to migrate across the Tasman with a New Zealand launch set for late November.

The new service will let you stream (that is, play but not save) an unlimited number of songs each month for $9.95, payable in advance by credit card.

That is a great move, and the pricing seems very reasonable.

The EFF report:

As we reported in June, ASCAP believes that when your cell phone’s musical ringtone sounds in a public place, you’re infringing copyright. A federal court yesterday firmly rejected that argument, ruling that “when a ringtone plays on a cellular telephone, even when that occurs in public, the user is exempt from copyright liability, and [the cellular carrier] is not liable either secondarily or directly.”

The greed and stupidity of some is almost beyond comprehension.

The ruling is an important victory for consumers, making it clear that playing music in public, when done without any commercial purpose, does not infringe copyright. That’s thanks to Section 110(4) of the Copyright Act, which exempts public performances undertaken “without any purpose of direct or indirect commercial advantage.” In the words of the court, “customers do not play ringtones with any expectation of profit.” This ruling should also protect consumers who roll down their car windows with the radio on,

No doubt they will propose you should have your car confiscated if you wind down your window, and allow people to hear the radio.

remember, ASCAP once demanded royalties from Girl Scouts for singing around the camp fire!

And this is why they are becoming so hated. They beat a retreat on that one at least, without going to court.

The court also found that cell phone carriers do not publicly perform when they download a ringtone to a phone (the carriers already pay 24 cents in royalties for the reproduction of the ringtone, but ASCAP was hoping to double dip by charging a public performance royalty on top of that).

This is key. They had been paid for use of the song as a ringtone. They wanted to also be paid if the phone rings in public!

Simon Power has releases the 113 submissions on s92A of the Copyright Act, and commented:

“There seems to be general support for the proposals. They’re regarded as a significant improvement on the original.

“This gives me encouragement that we’re on track to developing a fair and balanced process to deal with online copyright infringement.

Time will tell.

A key concern raised by some submitters was the proposal to terminate internet accounts as a remedy to copyright infringement. It was felt termination was an unreasonable ‘remedy’, especially where multiple users of a single account could make identifying an infringer difficult.

However, there was general support for the Copyright Tribunal playing the role of independent third party arbiter if necessary.

Mr Power said he was confident all issues would be carefully considered in the policy paper that will go to Cabinet later this year.

Good to see mention of the resistance to termination as an option.

A summary of submissions is online here.

The EMA has rightly cited concerns many businesses may still be treated as ISPs under the proposal. But their suggestion that a better alternative is filtering or blocking of file sharing sites is concerning.

Several copyright groups have said they support the model, but two of the major US dominated groups have said they want less checks and balances.

Pat Pilcher reports in the Herald:

In what could be a landmark move, US website www.filmfresh.com have joined the fray and are delivering over 600 downloadable big title Hollywood movies. …

Film Fresh’s movie titles are not totally hobbled with digital rights management (DRM) which means they won’t become unwatchable a week after you’ve downloaded them and can be burnt to a DVD or copied to a USB stick.

Perhaps most important of all, delivering a solid range of blockbuster Hollywood movies that are relatively un-crippled by DRM provides a legitimate alternative to copyright infringing downloads.

Absolutely. The biggest blow against illegal downloading is making material available for legal purchase immediately, without DRM, in all countries, for a reasonable price.

This goes some of the way there.

That’s the good news. The bad news is that Fresh Films is only available to folks living in the US and there’s no sign of it arriving here any time soon.

Stupid. That means the only way Kiwis wanting to view the film at home can do so, is to get it from a torrent site.

The other catch for those that can download Fresh Film titles is the price which ranges from US$10 to US$13.

Whilst that isn’t too steep (especially considering that the movie hasn’t been lobotomised by DRM), it is a little steep in that it is comparable to US budget DVD pricing and you don’t get the special features and other goodies usually bundled with a DVD.

I think this is significantly over-priced. In NZ you can go to the movies and see a film for around $10 on a weekday. Now bearing in mind you watching it at home means the studio does not  have to pay for the theatre, the theatre staff, the cost of getting a film reel to them etc etc and my expectation is that a movie should be NZ$5 at most to really get people buying them.

Likewise I think $1 is around the sensible rate for a TV show.

Bad news aside, the move by Fresh Films backers (Paramount, Warner Bros., Lionsgate, and Sony Pictures) to allow semi un-crippled legit movie downloads could signal a softening in the hard-line stance of the major studios, potentially opening the floodgates for other similar local services.

As I said, a step in the right direction.

Clare Curran floats four copyright ideas:

Education about copyright is very important. Government has an important role to play and copyright education should become a part of the school curriculum and be integrated right through our education system. A public education campaign is also needed for people to understand that protecting the rights of people who create content is important.

I’ve got no problem with that per se, but would caution that education campaigns can become own goals. The nasty messages that get played at the start of videos usually result in derisory laughs.

When consumers can easily and reasonably purchase all the films, TV shows and music they want legally online, then an education campaign on why people should only do legal downloads etc would be useful. But if the only way someone can view a TV show is to grab it from a bit torrent network, then no amount of education will change that.

We should enable people to access the information/material they seek. And consider introducing a licensing fee attached to internet service provider (ISP) connections. This fee would then be collected and distributed by an external agency amongst copyright holders.  In order to work, it would need the buy in of all ISPs and rights holders. It would likely be focussed on New Zealand copyright content first.

I think the future is going to be some sort of bulk license fee, paid through the ISP. Something alone the lines of $15/month for all the music you want.

However such a licensing fee should be a voluntary agreement between Internet users, their ISPs and rights holders. I would be very against an additional fee being imposed on all Internet users regardless of whether or not they wish to download material. A 75 year old occassional web browser should not have to pay for the 19 year old who downloads scores of songs a month.

Establishment of an independent rights agency to distribute fees and rule on disputes.  We still need an enforcement regime and a rights agency could also have the power to investigate and adjudicate on copyright disputes and alleged infringements aka the Section 92A model. However, I am of the view that internet disconnection is not a viable option. It simply won’t work and will drive hard core copyright infringers more underground. Financial penalties are more likely to work.

I agree that that financial penalties are a more appropriate penalty for infringers. I think it is excellent Labour appear to be ruling out supporting legislation that has Internet termination as a penalty.

A commitment to protect NZ content first. It’s our heritage, and the people who create NZ content must be able to make a living from their work and have that work valued.

Can’t really debate that one, as it is one of those apple pie statements such as “Education is good” which doesn’t mean a lot.  But I do think Clare is missing a few key words. It should be “must be able to have the opportunity to make a living from their work”. No-one is guaranteed the ability to make a living from their content. Otherwise us bloggers would be earning a lot more!

Simon Power has released a proposal for the review of s92A. One can give feedback on the proposal until Friday 7 August.

The Proposed Approach: Summary

Phase 1- First Infringement and Cease and Desist Notice Procedure

Where a RH considers on reasonable grounds that there has been online copyright infringement of one or more of its works, RHs may invoke the section s92A procedure by sending a first infringement notice to an ISP. The notice will contain sufficient details to allow the ISP to identify the subscriber
concerned. This notice must then be forwarded by the ISP to the subscriber. If there is further copyright infringement by that subscriber, a RH may send, via the ISP, a cease and desist notice. The subscriber will have an opportunity to reply to either notice by way of a response notice directly to the RH with their name and contact details attached. Upon receiving a response notice, a RH will be required to accept or reject it and inform the subscriber accordingly.

There will be issues here of who do you define as an ISP and a subscriber, and also quite importantly do ISPs get their costs covered for looking up who was at an IP address at a particular time, and passing a notice on. But the principle of the ISP passing on the infringement notice to the subscriber seems sounds to me, so long as costs are resolved.

Phase 2- Obtain Copyright Tribunal Order

Where a RH considers on reasonable grounds that there has been further (repeat) copyright infringement by a particular subscriber after a cease and desist notice has been sent, and the subscriber concerned has been provided with an opportunity to respond by way of a response notice, a RH may apply to the Copyright Tribunal to obtain an order requiring the ISP to provide the name and contact details of the alleged copyright infringer (the subscriber).

This seems appropriate. It should be an independent body such as the Copyright Tribunal that should have the power to order contact details of an alleged infringer. This is similar to how a court can order an ISP to name a customer if needed for a court case such as defamation.

Phase 3- Copyright Tribunal

A RH may then register an infringement complaint with the Copyright Tribunal which will ensure that the infringement complaint complies with requirements in statute/regulation. A RH may then notify the subscriber that an allegation of repeat copyright infringement has been lodged against them. The subscriber will have an opportunity to respond to the allegation and to elect to proceed to mediation. The Copyright Tribunal will be convened unless agreed otherwise.

The Copyright Tribunal, in addition to available relief by way of damages, injunctions, account of profits or otherwise, may consider ordering a subscriber to pay a fine or an ISP to terminate the subscriber’s internet account.

I like the ability for mediation. Again this looks a significant improvement on the original which has ISPs deciding who was guilty.

However there are still aspects I am uncomfortable with. I am not convinced that termination of Internet access is an appropriate penalty in a world where the Internet is so critical. No other offence or infringement has this as a sanction. Even extremely serious offences such as trading child pornography, doesn’t have a penalty where a Judge can order your Internet cut off. They send people to jail, and fine them.

I do support the option of a fine, rather than merely damages.

Also have queries around the cost of filing a complaint with the Tribunal (what will it be), and what the total cost of the regime would be, and comparing that to the benefits of this regime.  If MED have some ballpark estimates, it would be good if they could share this.

Also of considerable concern is that the ISPs are still piggy in the middle to some degree. When you get into the fine print of the proposal, you see ISPs are required to still record infringements notices against customer accounts etc and work out when they expire. Now this means an ISP has to reconfigure their CRM database. For some of the bigger ISPs, this could well cost them over $500,000 to do. Over the entire industry of 100 ISPs, the cost on these businesses could run to many millions of dollars. Will there be reimbursement for these costs? Is a recession a good time to be forcing extra costs on these businesses?

This is definitely a big improvement on the original s92A, and the Government should be praised for that. But there still remains significant questions about whether this is the best way to help rights holders combat copyright infringement.

That’s my initial take. I imagine I’ll have more to say once I’ve had more time to consider the detail.

We all had fun using the referendum question generator to create parodies.

Now what people may not be aware is the Electoral Commission Enrolment Centre filed a takedown notice against the site allowing you to create a parody, as Orange Man is their intellectual property.

New Zealand doesn’t have a specific exemption for parody and satire, so if they had proceeded, the site could have been forced to close.

Most people would agree the Electoral Commission Enrolment Centre should of course be able to take action if a person is using Orange Man to impersonate the Commission Enrolment Centre , or make people think it is a real notice on behalf of the electoral agencies. But most people can work out that a question such as “Should gingas be exterminated by 2011″ is not a real referendum.

Thankfully a compromise has been reached, where in return for explicit reference of the crown copyright, I understand the Electoral Commission Enrolment Centre has withdrawn its objections (which is good of them).

It does highlight though the need for good intellectual property law that both rewards the owner of intellectual property, but also protects fair use and free speech by allowing satire and parody.

Hat Tip: No Right Turn

The Dom Post reports that the Government’s review of s92A has been restricted to finding a better process to terminate Internet accounts of copyright infringers, rather than allow a debate on whether termination of Internet access should be a legislated penalty.

It is distressing that the Government is pushing on with such a controversial provision, when the rest of the world is rejecting it. The French Constitutional Court just threw out a similiar French law as unconstitutional.

Child pornography is a far more henious problem than copyright infrngement, but Parliament does not have a law stating that people convicted of child pornography must lose their Internet account.

Run an online fraud, and you will not lose your Internet account – you will just be punished for the actual offending.

Telecommunications Carriers Forum independent chair Richard Westlake says it is disappointed a promised review of the law and its implications has not occurred. “There’s been nothing said or seen which would imply that level of broader consultation and re- thinking has taken place or is in place. There is a working group but we’re concerned the issue has been pre-judged.”

Richard Westlake is correct. The review has been given narrow terms of reference – to come up with a termination model. It is not allowed to come up with a model that does not include termination of Internet access.

Labour’s Clare Curran says:

Terminating internet accounts is a major point of contention. Financial penalties would likely be more effective, she says.

And Clare is correct on this point. No one at all is advocating there should be no penalty for copyright infringers. But the penalty should be a fine that matches or exceeds the value of the infringed material.

Judith Tizard was rightfully blamed for the original s92A. If the Government comes up with a new version that is not much of an improvement, then they will be the ones blamed.

What would be useful is for the Government to clearly state that they are open to solutions that do not involved termination of Internet accounts.

NZPA has a story (not onlne yet) quoting Bill English taking questions at a post budget speech.

He is talking about how he wants to make it easier for graduates, especially overseas, to pay off their loan. His exact words:

For example, he said it was extremely difficult for students to get information about and repay loans, especially when they were overseas.

He said graduates were computer literate and handled banking on-line so should be able to make payments to their loans the same way.

“If you are overseas with a student loan it’s very hard to even find the IRD’s phone number anywhere,” Mr English said.

“For any other service you just go on your laptop and they’ve got their pirated movies, and they’ve got their music downloads and they’ve got their email from mum.

“It’s all there — so why aren’t their student loans there? Then they’d repay them.”

So Bill is saying it should be as easy to pay off your student loan, as it is to pirate music and movies

The Herald reports that the battle over the Pirate Bay file sharing site has gone from the courts to politics:

Regardless of the final outcome after the dust has cleared from any remaining legal wrangles, The Pirate Bay verdict appears to be achieving the opposite to the outcome intended by the copyright advocates with support for the site and its political offshoot, the Pirate Party reportedly going from strength to strength.

Since the verdict, support for the Swedish Pirate Party has surpassed that of the Swedish Green Party and it now appears that almost half of all Swedish males under the age of 30 are considering voting for the Pirate Party in the 2009 European Parliament elections. In the first 24 hours since the verdict, over 3000 people joined the Pirate Party, raising its membership from under 15,000 to over 18,000, making it the 5th largest, and the most popular political party within the youth demographic. The Pirate Party will however require at least 100,000 votes to gain a seat in the European Parliament.

It would be very amusing to have a Pirate Party MEP. Just hope no-one thinks they are from Somalia

Labour MPs hosted a roundtable on Tuesday evening to discus copyright issues – not just S92A, but longer term issues over how copyright law intersects with modern technology.

I’ll touch on the politics of it more in my NBR column, but this is smart opposition politics, and a good move for Labour. And I’m not just saying that because I was one of those invited – I’ve spent enough time in the Opposition meeting room to not feel a need to visit it often!

The turnout from Labour was impressive for what is not a top tier issue. Comms/IT spokesperson Clare Curran moderated. Arts/Culture spokesperson Grant Robertson was also there as was Lianne Dalziel who chairs the Commerce Committee that will presumably consider the Government’s law change. Maryan Street also there for a bit (Maryan was on the original Commerce Committee and was a key player in getting some good changes made at the select committee – which sadly were later overturned) as was Trevor Mallard and also David Cunliffe. So four former Ministers and six MPs in total.

There were a couple of dozen stakeholders there, and the discussion was useful. The first half probably saw more heat than light, but as time went on there were quite a few areas of agreement. Lynn Prnetice from The Standard and myself even agreed several times

Pretty much everyone agreed the current law is hopelessly inadequate for modern day copyright infringement issues. The law is only really set up to deal with situations where people make money infringing copyright, and is based around economic remedies. But a major problem today is infringement for personal use.

Everyone in the room said that there should be some cheap and quick (but fair) process where personal infringement offences can be adjudicated and dealt with. No one at all said one should be able to avoid paying for works by downloading. The Internet people all thought fines would be appropriate penalties – maybe tied to the value of the work they have infringed plus a penalty. It was thought maybe it could be like the IRD – if you download 100 songs that cost $1 each you’d be fined the $100 value plus maybe 50% penalty so $150. I did joke that people could just disclose their volume of ilegal downloads to the IRD on their tax returns

The rights holders rep said he would prefer Internet disconnection than fines as a sanction, as they think it is a bigger deterrent. I did get the impression though that any sort of meaningful sanction would be a step forward for them.

Quite a lot of discussion over future business models. The point was made that no one has a right to make money from their “art” – they have the right to have the “opportunity” to make money, but technology does disrupt traditional business models, and no industry is exempt – ie the media are just as disrupted by the Internet as the music industry.

I suggested the long term future is something along the lines of you pay $40 a month to your ISP for Internet access, and if you want it goes to $55 a month for Internet access and all the songs you can download legally, and say $65 a month to also subscribe to legal TV downloads and say $80 a month to also get movie downloads. And if ISPs are keeping a share of the license fee, they gain an incentive to crack down on those doing free copyright infringing downloads. A fair few people agreed this would be a desirable future.

I also advocated that rights holders and ISPs should try and get a voluntary agreement, regardless of any law, that allows right holders to have education notices to alleged infringers sent through ISPs. Even without sanctions involved, it is likely this would see a significant drop in infringing downloads. But right holders can’t expect ISPs to act as their mailmen for free s that is a key issue. Ant Healey from ARPA indicated they had been discussing just that with the TCF, which is good.

Without beating up on Healey (who made many constructive contributions), I was a wee bit disappointed that he did repeatedly go on about how the room was unbalanced with so many”Internet people” there and so few artists. This was the one issue that got people a bit worked up as many of the Internet people somewhat angrily proclaimed they were also artists.

S92A was discussed, but the focus was on wider issues around the law. Many people (including myself) advocated for a full first principles review of the law which would take account of today’s world where digital copying is instant and cost free, the fact the nature of infringing is now for personal use not economic gain, and most importantly to look at having a broad fair use doctrine that covers stuff such as parody, satire, fair quoting etc etc. Copyright is not just about music. Healey made the point that you have international treaty obligations so a first principles review may be pointless as you can’t avoid those. Personally I don’t think the two are incompatible.

Overall it was a good initiative by Labour. The MPs engaged well, and were not defensive about their role in originally supporting s92A. In fact a couple of former Ministers said they had been going back through old Cabinet papers to find out why they supported it at the time. The MPs participated but mainly were there t listen and consider possible ways forward for their positioning based on contributions.

No magic solution engaged, but I think most people found it quite worthwhile, and you know the Government would gain some kudos if it did the same and had an open dialogue with relevant Ministers and stakeholders. I think it would help them in progressing a law change.

I like the headline on NewstalkZB – Government dumps stupid law.

NZPA reports:

“Section 92a is not going to come into force as originally written. We have now asked the minister of commerce to start work on a replacement section,” Mr Key said.

“There is a need for legislation in this area, some progress was made between copyright holders and the ISPs but not enough to agree a code of conduct.

“In our view there are a number of issues that made it difficult to complete that code of conduct without fixing the fundamental flaws in section 92a.”

Mr Key said there needed to be unanimous support amongst ISPs and Commerce Minister Simon Power would be engaging with some experts in the area to go back to the basics.

Mr Key has said previously both sides of the debate had a point.

The Government would not allow the internet to be the “wild west” where any copyright holders did not have entitlement to compensation or recognition of their work.

However, its interactive nature led to different issues from the traditional media, Mr Key said.

I’m delighted that the Government has reached the almost inevitable conclusion that the law was so flawed it was unworkable.

May it stay buried with the career of its author.

There is a challenge ahead to see what sort of law (if any) can be framed to help reduce copyright infringement. It is worth remembering that s92A does not affect that it is illegal to infringe a rights holder’s copyright and that they can go to court to get compensation.

Personally I would be open to seeing if there is a way ISPs can work with rights holders to (for example) issue education notices to alleged infringers. But rather than do it by legislation, maybe by voluntary agreement with reimbursement for costs. Overseas experience has shown mere receipt of an notice will discourage the recipient from further infringing in around 70% to 80% of cases.

Roger Shepherd of Flying Nun writes in the Dom Post in favour of S92A. I think he has lots of things wrong:

In the current argument over Section 92 of the Copyright Act, several issues have been ignored or distorted. It seems to have been forgotten that downloading music or film without paying for it is stealing.

I don’t know of a single person who is against s92A who has argued that downloading music without paying for it should be legal. The argument is over whether s92A is appropriate and workable.

I cannot see anyone investing in digital music developments in New Zealand while illegal downloading goes unregulated and unpunished.

Here Shepherd is just flat out wrong. Illegal downloading is already punishable, and has always been punishable.

Copyright laws are a sign of a civilised society. We appreciate those in the creative industries who generate ideas, music and art and protect their work and their ability to make a living from it by giving them copyright protection.

Another red herring. No one is arguing there should be no copyright laws.

I think Section 92 is not a strong enough deterrent and should be tougher.

Losing one’s internet connection seems to me like a wimpy punishment for persistent theft. Perhaps we should be also looking at hefty fines that feed into a recording fund for our musicians.

Again Shepherd seems to be ignorant of the law. The Copyright Act allows a performer to go to Court and seek damages from an infringer. The issue for most people against S92A is that people can suffer consequences based on accusation without proof.

And remember the facts supplied by Google, as reported here.

Google says 57 percent of the takedown notices it has received under the Digital Millennium Copyright Act were sent by businesses trying to undermine a competitor.

About 37 percent of the notices weren’t valid copyright claims, Google wrote.

So there is an absolute need for there to be some independent decision maker on claims of infringement.

Still, Section 92 is a belated, moderate step in the right direction and fulfils the need to educate the public regarding copyright issues.

S92 goes well beyond education.

Let’s get on and implement it and remove the doubt and confusion that currently exist. If there are faults or problems with the process, they can be ironed out as it develops.

I prefer to listen to the Auckland District Law Society who say it is a confusing crap law. The law needs to be workable before it can be implemented.

Without Section 92, the wheels will fall off our local music industry and there will be no more homegrown successes

And blatant scare mongering. No one would dispute that illegal downloads do not pose a commercial threat to soem artists. But really claiming that without S92, there will never ever again by a sucessful homegrown musician is pathethic scare mongering.

It should be given the same respect as when the Head of the MPAA told the US Congress that video recorders would destroy the movie industry.

NZPA reports:

Calls to scrap the controversial new internet copyright law are increasing ahead of the Government’s March 27 deadline for a decision on its future.

United Future leader Peter Dunne, the minister of revenue, today compared it with the ill-fated Electoral Finance Act (EFA).

“The EFA arguably started out with good intentions but those became overwhelmed by the impracticalities of the legislation,” he said on Radio New Zealand.

“In the end it became a pariah, it literally brought a government down and Parliament has now repealed it. I would have thought we would have learned a lesson.”

The Government would be wise to listen to Peter Dunne. Peter has decribed his initial support for the EFA as the worst mistake he has made in politics.

With goodwill a scheme can be put in place that helps rights holders and will reduce online infringing. But s92A is not adequate and needs to be amended at a minimum.

NZPA quotes Rodney Hide:

ACT leader Rodney Hide wants the controversial Internet copyright law repealed and says he will recommend that to the Government.

“It’s one of the stupidest new laws imposed by Labour and I am taking steps to get rid of it,” he said at his party’s annual conference in Auckland today.

“It should be repealed…it is fundamentally flawed because it breaches the principles of natural justice. It makes people guilty without trial and that is wrong.”

Go Rodney.

TelstraClear have killed off the TCF Code of Practice designed to try and get workable process around the deeply flawed s92A. They have said they will veto the code at the TCF Board. TCF rules allow any board member to veto.

I was initially pissed off at TelstraClear, because all the hundreds of hours of work put into the code are now wasted. But upon reflection, I think they have have done the right thing by stepping back and saying this law is just so bad, we can;t make it workable through a code. Their submission explains:

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:

So there will be no TCF code. The other ISPs can continue work on the code as an unofficial grouping, but it would be madness to have s92A come into force with no code in place.

The submission on the code are very interesting, and I hope MPs look at some of them. Take this submission from the leading IT jurist in NZ – Judge David Harvey. Judge Harvey is also the former Chair of the Copyright Tribunal so about as authoritiative as you can get on this area:

This section 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.

Judge Harvey further concludes:

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.

Does the Government really want to persist with s92A bearing in mond those comments, and that there will now be no TCF code?

If it had been Parliament’s intention to provide for a process whereby contract termination should take place, Parliament should have provided such process by legislation after proper consultation with all interested parties.

This is basically TCL’s point. You can’t ask private players to determine these rights when the law is so silent on details.

The Australian ISP Association has commented:

As mentioned above, we are aware that a concerted worldwide effort has been made by rights holders in the music and film industries over the past two years to lobby for the introduction of a ‘notice and disconnect’ scheme along the lines of that proposed in the Code. In spite of that, no ‘notice and disconnect’ scheme has been implemented anywhere in the world.

Yay, we could be first. In fact that is why the US groups are pushing so hard – they want us to be an international template.

In all jurisdictions (except France) where the introduction of ‘notice and disconnect’ schemes have been considered and consulted on by Governments, there is now a general move away from any scheme which requires ISPs to terminate internet accounts, on the basis of an allegation of infringement from rights holders.

The whole world except Judith Tizard has realised what a bad idea this is.

Auckland University says:

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 Auckland District Law Society:

Section 92A represents a mechanism whereby the copyright holder, an unrelated third party, can interfere with the contractual rights between an ISP and a customer, where the customer is identified as a repeat copyright infringer. Under common law, that could, without significant justification, amount to the tort of interference with contractual relations.

This law is just as flawed as the Electoral Finance Act. When the former Chair of the Copyright Tribunal, the Auckland District Law Society and the country’s largest university says the law needs to repealed or amended, it is time to do so.

National did the right thing by delaying the introduction until a code could be completed. But we now know that unless the law is amended, a code is not going to happen, so time to introduce a bill amending or repealing the clause.

UPDATE: Also worth reading the submission from the Society of Authors. They are as pro-copyright as anyone, yet they say:

The NZ Society of Authors is concerned about the introduction of the proposed s92A of the Copyright Act 1994. Whilst we strongly support the need for measures to control repeat copyright infringement we feel that this clause is not ideal – it has been hastily written and we recommend the need for further discussion.

We feel that should Section 92A be implemented, it is imperative that the Code of Practice be effective and respectful of the rights to freedom of expression.

Radio NZ has said no disconnection should occur without a court order unless there is an independent body established by the Government to rule on any disputes.

And Internet giant Google has also made a submission:

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. …

Copyright law is often complex and context sensitive, and only a court is qualified to adjudicate allegations of copyright infringement. Indeed, in Google’s experience, there are serious issues regarding the improper use and inaccuracy of copyright notices by rights holders. In this context, the responsibility should not fall to ISPs to determine cases of infringement.

It is very relevant that Google has testified that many rightholders notices are inaccurate and indeed improper.

The Dom Post reports:

The Labour Party will invite organisations with an interest in copyright law to informal talks this month.

Communications spokeswoman Clare Curran says the goal will be to try to thrash out agreement on the wider issues of copyright, following controversy over section 92a of the Copyright Act, which would oblige internet service providers “in appropriate circumstances” to cut off “repeat copyright infringers”.

The talks would help Labour form a view about what it would do when it returned to power.

“There should be a group talking about the big issues. Someone has got to take the initiative.”

I’m not just saying this because it is an issue I am involved in (and have been invited to the meeting), but it is a good example of what Oppositions should be doing.

Opposition can be pretty soul destroying. As you see National reverse previous policies you’ve implemented, it is demoralising. Trust me – have been there. And it turns the public off to have almost everything the Government does (which they generally campaigned on) attacked by the Opposition – it sends a message of “We still think we are right”.

One of the best things one can do in Opposition is to connect and listen to people. It is an opportunity to frame up policies and positions without being captive to past policies. Every Opposition Spokesperson should be getting around to meeting as many groups and individuals in their portfolios as possible. And not just inviting them in to your office – but going on the trail and visiting them – get out of Wellington.

Anyway back to this copyright conversation. It is a good example of sensible Opposition politics. Use a short-term issue (s92A) to start a conversation on a longer term issue (copyright law in the Internet age), and show you are listening.

s92A is just one flash point in the clash between technology that allows perfect high speed digitial copying of well basically everything, and traditional copyright laws. The challenge is to get a copyright law thet reflects the reality of today’s world, yet still protects the economic interests of rights holders.

Campbell Smith of RIANZ has a column in favour of s92A in the NZ Herald:

New Zealand was at the forefront of tackling the issue with a law that had received bipartisan backing.

Indeed. The Select Committee unamiously agreed to take s92A out of the bill, and then it was inserted back in supported by all parties bar the Greens and Maori Party. And since then every party in Parliament has backed to some degree away from the law calling it flawed.

The recording industry has transformed its business models, making music available online and on mobile through a variety of different partners. Yet the widespread availability of unlicensed music on the internet acts as a disincentive to those considering setting up legal services.

Things have got better. I remember the days when it was illegal to use an iPod in NZ, because format shifting was illegal and iTunes was not available here.

I think there is still some way to go. A monthly subscription fee to be able to legally download popular music seems to me to be part of the future.

The recorded music industry has been working hard to find proportionate and reasonable solutions to tackling online copyright infringement. In some countries, labels have taken legal action against users who have uploaded infringing music to the internet without permission for millions to download without payment. We believe section 92A is a better solution for everyone.

It isn’t a binary choice.

Some people have suggested the new law would mean people keeping tabs on what internet sites people visit or monitoring people’s email. That is not true.

I suppose it is possible some people have said this. But it is a bit of a red herring. I’m never heard anyone seriously suggesting this – certainly not any of the key groups or individuals opposing s92A.

Others suggest that under the draft code of conduct designed to implement the law people will be summarily thrown off the internet for downloading a couple of unlicensed files. That is also not true.

This is right – it needs at least four files.

What would happen is simple. Right holders could log on to public file-sharing sites, just as anyone can, and note which IP addresses are being used to upload pre-release music or films or large amounts of copyright-infringing material.

They would then prepare evidence, complete with details of the names of the copyrighted files being uploaded, exact timestamps and the protocol used, and send it to the relevant ISP. They would never see the personal details of the person behind that IP address.

The ISP would then contact its user and warn them that they were breaking the law, advise them not to do it again and provide details of where to enjoy music legally online.

If the user kept breaking the law the ISP could close the internet account.

It is not a matter of “could” as “must”. And the problem is Campbell sees copyright as only being about music files.

I’ve just quoted most of his column here, so I can respond to it. It is arguable I have breached the copyright of the NZ Herald and/or Campbell. I have a defence of fair dealing, but you know I don’t want my blog to face closure because my ISP has to decide whether or not the amount of text I quoted was “fair”.

I agree with the proposition that users should be able to flag to an independent adjudicator anything they regard as mistaken evidence. This is no sledgehammer. On the contrary, it is a reasonable and much preferable alternative to the lawsuits we’ve seen in other countries.

And this stance is welcome. I must point out that their previous stance was RIANZ itself would adjudicate any disputes, where RIANZ is the complainant. That is what so many people were against.