Copyright (Infringing File Sharing) Bill Submission

Just finished this submission. Now working on my electoral finance one. Curses they both close today.

SUBMISSION OF DAVID FARRAR
TO THE COMMERCE SELECT COMMITTEE
ON THE COPYRIGHT (INFRINGING FILE SHARING) AMENDMENT BILL

About the Submitter

1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.
2. I appeared before the Committee in 2007 on the Copyright (New Technologies) Amendment Act 2008 where the removal of S92A of the principal act was advocated, and agreed to by the Committee. It was later reintroduced at the Committee of the House stage.

Executive Summary

1. I support the Copyright (Infringing File Sharing) Bill as a huge improvement on the current S92A of the Copyright Act.
2. I believe the provisions allowing for suspension of a person’s Internet account should be deleted as an unproportional response, and a bad precedent.
3. There are a number of other desirable amendments to the bill, which would in the main be considered technical improvements.
4. I urge the Committee to try and obtain quality research on the level of economic damage caused by personal non-commercial file sharing, and whether the proposed tribunal regime is justified in terms of the taxpayer investment into its costs

   The overall bill
   

5. I congratulate the Government, and especially Commerce Minister Simon Power, for his response to the problems highlighted by S92A.
6. The policy consultation and development process was robust and inclusive, and the policy outcome as laid out in this bill is generally well balanced. This was reflected in the unanimous support for this bill at first reading.
7. The critical features of this bill are
   * that the law will no longer presume guilt upon accusation
   * ISPs do not have to act as a judge in any disputes
   * rights holders gain the ability to send notices to alleged infringers
   * users have their privacy protected
   * ISPs can charge a fee to reflect the cost of processing and data matching infingment complaints
8. * That any tribunal action can only happen after ongoing alleged infringing

   Suspension of Internet Access as a penalty

9. I appreciate that the bill has considerable safeguards around the provision to allow suspension of an Internet account – specifically that the power is reserved to the Court, not the Tribunal, and that the circumstances in the proposed s122O(3) must be taken into account.
10. However I believe that it would be a very bad precedent to pass a law which has suspension of an Internet account as a penalty.
11. The Internet is a utility, much like power, water, and phone. It has become essential to many New Zealanders, and in fact the Government itself requires certain transactions to be done online, such as company annual returns.
12. If someone grows cannabis plants in a heated glasshouse at home, we do not give the courts the power to suspend their electricity account for six months. We charge them for the offence.
13. If someone sends a threat by fax machine to the Prime Minister, we do not give the courts the powers to suspend their phone line for six months. Instead we charge them for the threats.
14. Even with other highly undesirable activities on the Internet, we have not given the courts the power to suspend or terminate an Internet account. Many would agree the worst material on the Internet is child pornography. If someone is convicted of trading in child sexual abuse pictures, they may get sent to jail, or fined. But the court does not have the power to suspend or terminate their Internet access.
15. For what is a civil, not even a criminal, offence of copyright infringement, a punishment of Internet access suspension is grossly disproportional.
16. While it is unlikely to be used often, it would set a very unhealthy precedent.
17. I recommend that the Committee delete the proposed sections122O and 122P. Also a consequential deletion of S122Q(2)(e)

    Other Amendments
    

18. In s122Q(4) the date “31 September” should be replaced with “30 September”
19. Also in s122Q(4) I would propose that rather than require ISPs to publish compliance statistics on their own websites, it would be more useful for the purpose of analysis to have them submit the statistics to a government agency (probably MED) and have the statistics published in one central location.
20. A number of other technical amendments are detailed in the submission by InternetNZ, and I endorse those proposed changes.

    Research on economic damage
    

21. At the 2007 select committee hearings, I recall music industry representatives talking about how the failure to pass that law would lead to artists like Bic Runga having to flip burgers at McDonalds so she can earn enough money to live on.
22. Some rights holders produce reports stating that the economic damage is in the billions, assuming every single download of a “work” is a sale that would have otherwise occured. This ignores the fact that many downloaders “try before they buy”, or in other words download to see if they like something, and if they do then purchase it legally. This is not to condone such acts, but to point out that the assumptions over economic damage are unwarranted.
23. In Australasia, the most recent stats (from the Int Assn of the Phonographic Industry) show that music revenues are up 3.5% (physical sales down 2.4%, digital sales up 41.4% and performance rights up 8.6%) in 2009. Also APRA reported that in 2008/09 distributions to music creators increased by 10%
24. In the movie industry, global ticket sales were up 7.6% in 2009, during the worst recession in 70 years
25. Again, this is not to condone illegal file sharing, or to suggest it is of no consequence. But to put the claims of industry groups in proportion.
26. In giving the Copyright Tribunal a mandate to hear file sharing infringement claims, Parliament will be investing many hundreds of thousands of dollars into the Tribunal so it can do this work.
27. It would be prudent for members of the Committee to ascertain that they have sufficient quality research on the economic damage caused by non-commercial personal file sharing, to justify the investment of taxpayer dollars into the Copyright Tribunal’s expanded mandate.
28. An alternative is to do what Canada and the UK have done, and to simply implement a notice and notice regime, which research has shown will deter 70% of file sharers), and evaluate how that regime works, before deciding on the need for the Tribunal.

In summary I urge the Commerce Committee to recommend the Copyright (Infringing File Sharing) Amendment Bill be passed, with appropriate amendments.

David Farrar