Copyright termination terminated – for now

Overall the changes made by the Select Committee to the Copyright (Infringing File Sharing) Amendment Bill represent an improvement. I’m especially pleased that they have effectively shelved for now the termination provisions, as I thought that would set a bad precedent. What are the changes?

  • The definition of an ISP has been narrowly defined to cover traditional ISPs and exclude universities, busineses and the like who might provide Internet access but are not really ISPs. This is a good change
  • The definition of file sharing has been tightened so it won’t cover downloading a single file off a website etc. Has to involve using file sharing technology. Also a good change.
  • Those given notices have an extra week now to challenge them – also good.
  • ISPs are no longer required to consider whether to accept, reject or refer on challenges to rights holders – all challenges get passed onto rights holders
  • No lawyers at Copyright Tribunal hearings unless very good cause. Yay.
  • Now for the bad one – they have recommended that an allegation from a rights holder will constitute burden of proof which must be rebutted. This is dangerous. Google has given evidence that around 30% of the notices they have received in the US are false or incorrect. I think the Copyright Tribunal should be left to its own devices to decide if an infringement notice from a rights holder meet burden of proof. Different rights holders may establish different levels of reliability. I hope the Government will consider amenemdents to this at committee of the whoel stage.
  • The committee have said that any damages should include a punitive element, and not merely compensation. I partially agree. Compensation only would not provide any disincentive. However any punitive damages should be linked to the level of lost revenue. I see it like the IRD with 100% penalties. If you download $100 of music then you could get fined say $200 and if you download $500 of movies then the fine may be $1,000. But if the punitive damages are unliked to the offending then you may have someone fined $15,000 for downloading one song.
  • The provisions for a Court to order an Internet account to be suspended for six months have themselves been suspended. The Minister can activate them by order in council, but only if other penalties are seen not to have worked. Not a bad compromise. I;d rather no provision at all, but this is a lightyear better than what was in the law passed by Judith Tizard and Parliament in 2008.

The Greens have said they support the bill going forward, but think Internet suspension should be out of there entirely – not just held in reserve. I agree.

Ai I said, overall this improves the bill, and the bill itself was a huge improvement on the old S92A. MPs, and Simon Power, have done a good job of dealing with some challenging and complex issues.

However, the bill can be made better still – a universal burden of proof assumption is not warranted, and I hope MPs will consider further enhancements to the bill at the next stage.

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