Select Committee Report on Copyright (Infringing File Sharing) Bill Just Released…

After the earlier hearings the Commerce Select Committee have now reported back on the draft Copyright (Infringing File Sharing) Amendment Bill [PDF]. We’ll be analyzing this report throughout the day but from an initial reading they have recommended that Internet Termination be temporarily disabled until it’s deemed necessary. This isn’t a solution, and infact it’s a massive problem because there are no government statistics about infringing internet downloading in New Zealand so it would have to be based on lobbying, and Internet Termination could be enabled in cabinet, without a vote in parliament.

TechLiberty aptly say that “Account suspension is still included but suspended until rightsholders complain that notices/fines haven’t eliminated all sharing”

On Internet Termination,

The majority of us recommend the new section 122PA, which would effect what we believe a workable compromise on this issue. The bill’s provisions allowing for Internet suspension would be retained, with modifications, but would not be brought into effect immediately. If evidence indicated that notices alone (and the remedy through the Copyright Tribunal) were not having the desired deterrent effect, the suspension provisions could be activated by Order in Council. The majority of us believe this approach would create the right incentives, with the remedy of suspension able to be brought into effect if needed. We would expect an appropriate timetable for monitoring and review to be developed in consultation with rights holders. We note that a similar approach was recently adopted in the United Kingdom.

On the scope of “file sharing” the report says,

We recommend that the definition of file sharing in section 122A(1) be amended by including reference to downloading or uploading material using networks or applications that allow material to be shared among multiple users. This would avoid inadvertently capturing activities such as emailing or downloading that did not involve file sharing; if such activities breached copyright, they would be actionable under existing provisions in the Copyright Act.

Email can be shared among multiple users and websites allow data to be shared among multiple users. This definition is still too broad and it overlaps with that of Section 92C (already part of the law that allows webpage takedown based on unproven allegations).

On whether libraries and universities should have a defence because they couldn’t prevent copyright infringement the Select Committee have not dealt with the technology issue,

We considered carefully whether some account holders—for example, libraries and universities—should have an exemption or defence on the grounds that they did not have control over an infringer. We rejected such an approach as we consider it important that all account holders take measures to ensure that infringing file sharing does not occur on their account. However, we accept that there will be some circumstances in which the order of a payment would be manifestly unjust.

Libraries and universities cannot prevent infringement because the technology does not make this possible. To even attempt this they would be forced to snoop on emails (sent and received) and to prevent web-browsing to YouTube, Google Images, and many other essential websites. If the Commerce Select Committee believe that it’s possible for libraries and universities to “take measures” to prevent infringement then could they please reveal what they believe is feasible? In our s92A submissions we noted that there has been no studies of compliance costs under this law, and yet vicarious liability for something that was unpreventable still forms a part of it. This is a gross expansion of copyright.

On the scope of what’s considered infringing the report gets it right,

We recommend that the definition of copyright infringement in section 122A(1) be amended by removing the words “or part of a work”. While we understand that this phrase was included to address the fact that file sharing often involves getting small parts of a work from different sources, we do not believe it was the policy intention of the bill to change the general principle of copyright law, which is that a “substantial part” of a work must be dealt with in order to make a finding of infringement.

Download full report on the Copyright (Infringing File Sharing) Amendment Bill [PDF].

A comment from the Greens about Internet Termination,

The Green Party has always opposed, and continues to oppose, termination (account suspension) as a remedy for infringing file sharing.
We believe it is disproportionate to the problem and would not solve it. The compromise before the committee isn’t a compromise on this issue at all. It is just a delay in implementation of this ill-considered remedy.
The Green Party asserts that there is a danger in heavy-handed regulation for a problem that may only be a temporary result of new technologies upsetting traditional business models.
Citizens are not denied the right to use their telephones because they happened to be used in the commission of a crime, and this legislation should not set any precedent. Access to the Internet has become a necessity in an era when more and more public and private services are only provided online.
While supporting the bill in principle, the Green Party opposes the retention of termination in the legislation.

(emphasis ours)

Update: NBR analysis of the report, and TechLiberty look at IPAP, the new definition of an ISP. Rick Shera has posted his analysis. Labour’s Clare Curran has responded saying that they’re “Proud of deal” and that “bottom line Nats said termination in. We said not in. Compromise in but not enacted. Otherwise termination wld have been enacted” (source). Here is National’s Simon Power’s announcement.