New copyright act to hit NZ ISPs

2009 will force New Zealand's ISPs to come to grips with an amended Copyright Act, which includes a provision forcing them to disconnect customers who have allegedly infringed copyright.

(Credit: Holding a dot com III
by Anna Maria Lopez Lopez, Royalty free)

The update was made to cover digital media in light of intellectual property treaties that New Zealand is a party to, and in order to obtain a free trade agreement with the United States. However, the wide provisions of Section 92A and 92C of the new Copyright Act are a cause of concern for ISPs.

Section 92A states that:

"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."

The amendments to the existing copyright act were brought in by then-Labor minister Judith Tizard, who lost her seat in the November 2008 elections. Even though S92A was removed at the Select Committee stage, Tizard re-introduced it into the bill by means of Standing Orders Papers.

Both major parties in Parliament, Labor and National, voted to pass Tizard's bill into law. These moves came despite the National Party's Chris Finlayson, who took over after Tizard as Minister of Arts, calling the bill "very poor legislation" and attacking its process through Parliament as a "shabby law reform exercise".

Thanks to industry protests, S92A of the new Act was suspended until 28 February 2009, to give ISPs time to negotiate a solution with rights holders. The new Communications Minister, Steven Joyce, has said he will not repeal the S92A portion, despite acknowledging the concerns of its implementation.

Ralph Chivers, chief executive of the Telecommunications Carriers' Forum (TCF) — an umbrella organisation for New Zealand telcos — is tasked with writing a Code of Practice around the new Act for ISPs to follow. He says S92A contains "very vague language" that is open to wide interpretations.

Chivers says the terms "repeat infringements" and "appropriate circumstances" are ill-defined, making the law controversial.

Furthermore, under the Act, any organisation that provides internet services is classed as an ISP. That means universities, libraries, businesses and government organisations, along with traditional ISPs.

Despite slamming the new law as "deeply flawed" and "undermining fundamental rights", Chivers and the TCF have issued a draft Code of Practice in regard to the law, which is open for public consultation until 6 March this year.

Some of the main points of the Code of Practice are:

• Evidence against infringers has to hold up in court. Pre-approval regime to be introduced, whereby rights holders' evidence collection methodologies are assessed to ensure they hold up in court.
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• Non-pre-approved Copyright Holders are required to submit sworn evidence for each infringement notice.
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• Rights holders won't be told the identity of the alleged infringer.

Notices that pass evidence muster will be sent to customers accused of infringement, together with an Education Notice; one or more of these a month results in a Copyright Notification. Users who receive three Copyright Notifications within 18 months will receive a Final Warning notice. Any further notices after that results in a disconnection.

Furthermore, there will be no stand-down period between a customer disconnection and re-signing up for the same provider. Under the Code of Practice, the copyright holders have to pay a fee between NZ$50 to NZ$100 to file a complaint. The fee is to recover costs for ISPs in processing the complaints, Chivers has said.

The draft Code of Practice from the TCF seeks to assure users that they will not have their internet accounts disconnected without fair warning. A disputes procedure where users can argue against "education notices", which disconnect users, is also built into the code.

Rights holders organisations APRA, RIANZ and NZFACT were contacted for comment, but didn't respond in time for publication.