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New copyright act to hit NZ ISPs

By Juha Saarinen, ZDNet.com.au on February 5th, 2009

Topics

nz, law, copyright, infringement, isp

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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.

  • Non-pre-approved Copyright Holders are required to submit sworn evidence for each infringement notice.

  • 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.

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Talkback

Copyright

I bet the supposed new Act is not legal.

I know in the Commonweath of Australia, an Act must not be voted on on party lines as its the null and void. The reason: The Commonwealth Constitution does not recognise political parties. Im sure there is a similar provision under the New Zealand Constitution. I would love to see this Act stand up in court. I would be challenging the validity of it.

It will never work, and good luck. ISP's cannot be held responsible for what people download. ISP's only provide the connection, thats it.

Typical Communist dictatorship.

FredFred February 6th, 2009
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:D

Should be interesting, watch all the lawsuits come rolling in form people who didnt download what they "allegedly" did.

AnonymousAnonymous February 6th, 2009
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1000's of innocent people

Let's now sit back and watch as people start using anothers unsecured wireless to infringe copyright. Which will then have the innocent party disconnected.

There will be lawsuits left, right and centre.

To see how the US extorts other countries - Watch the movie Zeitgeist:Addendum. You can stream it from google.

AnonymousAnonymous February 6th, 2009
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Go NZ

Being a kiwi in Australia i have to applaud this and if it stamps out some of the illegal stealing p2p brings its a good thing. No matter what media is lifted and regardless of what corporate monster owns the rights the bottom line is, it's theft and anyone that uses p2p to download or distribute things they don't own the rights too is culpable.

As for unsecured wireless connections being an alternative if your running an unsecured wifi then its your own fault because if im correct its not illegal to use an access point that's unprotected. It takes two seconds to set up wpa and you don't need to be a tech savvy genius. If your traffic gets sniffed and your password cracked then its another story but at least you have done something to protect your network.

AnonymousAnonymous February 6th, 2009
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unauthorised access

It IS illegal to access a wireless access point that you are not authorised to access, whether unsecured or otherwise.

Nonetheless, you are right, it takes no time at all to secure it.

AnonymousAnonymous February 6th, 2009
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Hypocritical

Wow talk about hypocritical, in 1 sentence you say downloading movies is theft and in the next sentence you blame a user when someone steals someone elses wireless connection.

It is hardly fair to say 'you don't have to be a Tech Savvy Genius", I have several friends who openly admit they are totally bewildered when it comes to computers and the internet, they often don't even know enough to get onto the net, after they have gone and bought the appropriate Modem that came with absolutely no advise on internet security, I am usually the one they ring with an SOS.

AnonymousAnonymous February 7th, 2009
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bah

it is the users responsibility to secure there own PC. You don't park your car in bad neighborhood and leave the window rolled down do you? and when as stupidity ever been a valid defense?

you obviously missed the fact that i was assuming that warchalking or wardriving was indeed still legal but apparently i stand corrected and it is a crime but the fact remains it is still the end users responsibility regardless of technical know how to secure there own network and NO you don't need to be a tech savvy genius that's what the manual is there for and your ISP help desk and i find it really hard to believe buying an ISp recommended modem came with no instructions but with that said i dont condone anyone piggybacking anyone elses connection but we dont live in a perfect world do we? so we take steps.

MattMatt February 7th, 2009
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Guilty until proven otherwise

"which includes a provision forcing them to disconnect customers who have ALLEGEDLY infringed copyright."

This is a restraint of trade. Where is the burden of proof on the informant? What gives an ISP the authority under Common Law to pay the role of a court? Obviously the new NZ laws are flawed in many ways.

It will be another quagmire just like lesser laws that exist in Australia where some customers will be wrongfully accused and ISPs will be under threat from record companies.

Mel SommersbergMel Sommersberg February 10th, 2009
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At least one party wants to can the new law

Peter Dunne, leader of the small United Future party, says the new act should be dumped:

http://www.nzherald.co.nz/connect/news/article.cfm?c_id=1501833&objectid=10556606

Juha SaarinenJuha Saarinen February 16th, 2009
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Internet Blackout NZ

We're running an Internet Blackout campaign against these unjust laws at http://creativefreedom.org.nz/

Matthew HollowayMatthew Holloway February 17th, 2009
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