An unworkable copyright law

September 19th, 2008 at 1:31 pm by David Farrar

Six major ICT groups have put out a statement slamming the new copyright law as deeply flawed and unworkable. The six groups are:

  1. InternetNZ
  2. Telecommunications Carriers Forum
  3. TUANZ
  4. Internet Service Providers Association of New Zealand
  5. NZ Computer Society
  6. Women in Technology

There has never previously been an issue that those groups have joined forces on.

This law was passed last year. I think every party but the Greens voted for it, and it is just a shambles. Even worse the clause that is causing many of the problems was deleted by the Select Committee (I was one of those who sucessfully lobbied for it to be removed) and it was put back in by the Government (but voted for by most parties) at the last minute during the Committee of the House stage.

It is s92A causing the nightmares. It states:

An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

Now what the hell does that mean? Some in the IP industry are saying it means that an ISP must permanently terminate a user from the Internet upon receipt of three complaints alleging copyright infringement.

Note just alleged infringements. Not that you must terminate someone only after they have been found guilty in court.

You could do a parody of an advertisement, and argue that this qualifies as fair use (as permitted under law). If the advertiser disagrees and complains you are on the way to being kicked off the Internet.

Upload to You Tube a video of yourself with the radio on in the background, and you may have infringed copyright of the song on radio, and bang there goes your Internet access.

Don’t believe me. Here’s the NZ Computer Society Chief Executive:

NZCS generally steers clear of criticising laws, however in the case of Section 92a of the new Copyright (New Technologies) Amendment Bill we, like most others in the sector, have to make an exception.

In fact the problem is so large the entire ICT and Telecomms sector is now up in arms about it.

Now let’s get one thing clear. Copyright owners absolutely have the right to protect their intellectual property, and NZCS and others are not for one second saying otherwise. To state it clearly: Copyright violation is a major problem, and we support moves to reduce it.

However to trample all over the rights of computer and internet users, and to place ISPs in the position of potentially having to be the policeman, judge, jury and executioner in what are often vague and unclear situations is completely unreasonable.

This is actually eerily similar to a situation where a power company would be forced to have a policy stating that they must cut the power off to a house, business, school or library (yes, they’re included) if someone on the property used that electricity to do something illegal. I can’t imagine that situation receiving a good reception, so why is this any different?

And here is Ernie Newman from TUANZ:

Few people would disagree that the musicians and others who own copyright to digital content are entitled to have their legitimate interests protected. But a workable balance has to be found between the interests of copyright owners, and those of legitimate Internet users and Internet Service Providers.

Yet for that kind of balance, this Act scores zero out of ten on the NCEA scale. …

I’m struggling to remember a more imprecise piece of legislation. This is just abrogation of parliament’s responsibility.

So what can be done?

Well the good news is the law has not yet come into force. The Government can bring it into force by an Order in Council. I understand they are planning to do this in October.

Lobby Ministers and MPs to have Cabinet delay that section. They can trigger the rest of the new Act, but leave that section delayed to give the Internet industries and Rights Holders tme to come up with a Code of Practice which will give some certainity to how that section should operate.

So if you don’t want to see an unworkable, deeply flawed law come into force next month, start e-mailing or contacting MPs. Otherwise you may find that those three videos you uploaded to You Tube have got you kicked off the Internet, or at leats your ISP.

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