The S92A proposal

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.

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