Consumer's Institute Submission on NZ Copyright act s92a
October 14, 2008
The followed is quoted from the The Consumer's Institute's submission (pdf) on the NZ Copyright Amendment Act
Section 92 Internet Service Providers Under the Bill, if an ISP receives notice of a copyright infringement by one of their customers, to protect themselves the ISP will immediately need to close down the site. The onus is then on the customer to prove their case and get their website access reinstated. We believe this
responsibility is open to malicious abuse by parties who wish to
close-down websites or disrupt in some way another person’s business or enjoyment of the use of the internet. As an alternative, Consumers’ Institute supports the “notice and notice” approach where if an ISP is notified about a copyright infringement, they have a responsibility to forward the notice to the customer. If there is a response from the customer this should be forwarded to the copyright owner. If there is no response the ISP would then have an obligation to take-down the website. A time period of perhaps 10 days would be reasonable.The “notice and notice” approach means ISP’s do not have to play the
role of policeman and it also provides a fairer redress for consumers. Section 92a states that ISP’s need to adopt, and reasonably implement, a policy that provides termination, in appropriate circumstances, of accounts of repeat copyright infringers. This raises issues of the proof required and a definition of “appropriate circumstances” and “repeat
infringers”.
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The consumers institute
The consumers institute position is short sighted.
It addresses only the immediate concern over the ambiguity of the offending clause to the cost of consumer protection afforded by normal jurisprudence.
It is reasonable for ISPs to forward infringement notices - but not reasonable to shut down the infringer access when a reply is not forthcoming. There are many reasons why an alleged infringer may not reply - they may be on holiday and not checking their email.
Regular mail delivery services have been used to distribute infringing material and worse. When someone is suspected of sending, say, bombs, through the mail, we still require a evidence and a guilty verdict before cutting off their post-office access.
Much more appropriate is:
The copyrights holder shows the ISP a court order to turn over the alleged offender's details. Then the holder goes after the alleged offender in the normal manner.
In this way, the ISPs help the process by putting the parties in touch with each other.
Curiously, we do not need this section in the copyrights act to do this. So lets remove it.
The longer term consequences around letting the section remain stem from the way it was introduced: via the back-door, so to speak. Allowing it to remain makes it easier, in future, for other bad (or worse) propositions to become law.
Forcing the section's removal - at least to re-examine it's wisdom later - sends the message that this sort of thing is not on. That is not how we do things in NZ.
The long term result of removing the section will be to protect NZ consumers from other threats, yet to be dreamed up.
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