Rick Shera writes, “Until April this year, the Powers that be were doing a good job consulting on the replacement for the infamous three strikes s92A of the Copyright Act – several detailed rounds of consultation and a Bill that, whilst still flawed, did attempt to cure some of the worst excesses. But it all started to go awry in April. First off, seemingly because the Government had invoked urgency to debate Christchurch earthquake emergency legislation but wasn’t ready in the afternoon when urgency commenced, the Copyright (Infringing File Sharing) Amendment Bill was plucked from the Parliamentary order paper. “Let’s fill up the time with that” they obviously thought. “It’s had a right going over so no-one is going to complain that they’re being caught by surprise – we don’t want a repeat of the s92A SOP debacle now do we”. After 2 years of careful deliberation, the Bill was passed under urgency and we had the Copyright (Infringing File Sharing) Amendment Act 2011 on the books in a few hours. Oh dear. I’m not saying a more considered debate would have made any difference, but the sight of MPs who had no knowledge of the legislation, let alone of the internet they were trying to regulate (Skynet anyone?!), was terribly embarrassing. Not only for the MPs themselves, but for New Zealand, as we were watched by international participants in this worldwide copyright debate.”
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Submissions on the Infringing File Sharing regulations discussion document are due on Friday, and here’s the CFF’s response (PDF). The introduction follows,
Guest post from Alaister Moughan about Remix and Creativity
In the MED Infringing File Sharing regulations discussion document (public submissions due at the end of this month) they ask for feedback on the ways of calculating fines. What should the fines be for movies or TV shows that were never available online for purchase; that could never have been a ‘lost sale’?
On Stuff.co.nz today RIANZ made another ridiculous exaggeration saying that “if you’re delaying it for two years you might as well delay it for three lifetimes” and that those who said ‘copyright infringement over mobile networks was low were incorrect’. RIANZ have offered no statistics to back their claims, and yet again they have not shown how they were even capable of reaching this opinion. They’d simply prefer if you took their word for it, and that this view would affect how laws were made in New Zealand.
On Wednesday we published a lot of information about s122MA, a return of Guilt Upon Accusation in the new copyright law. Rick Shera has just written an article about it, “Back in 2008, after the Parliamentary Select Committee had removed section 92A from the Copyright (New Technologies) Amendment Bill, it was reintroduced unannounced on April Fools Day in an SOP just a week before the Bill was passed into law. The problem with section 92A was an ISP was almost certain to treat an internet account holder as guilty as soon as the ISP received an accusation from a rights owner. [...] Well, despite the many improvements proposed in the Copyright (Infringing File Sharing) Amendment Bill (section 92A’s replacement), at almost the last gasp the Select Committee has reported back with a completely new provision – a provision that creates a presumption heavily favouring the rights owner. Section 122MA – without any warning, no public consultation and out of kilter with the balanced approach that has gradually developed. Groundhog day – the scales are being unfairly tipped again. For reasons that are not immediately apparent.”
Update: CW Magazine also have an article on s122MA, saying that “the three points … establish very narrow criteria for a challenge. They do not, for example, leave room for a challenge on the grounds that the work was not copyright or that the way it was handled constitutes legal “fair dealing”.”
David Farrar at Kiwiblog has reviewed the new report saying that there are many improvements, but that he hopes they can make further enhancements, “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 amendments to this”
The Creative Freedom congratulate the Commerce Select Committee on releasing their report on the draft Copyright (Infringing File Sharing) Amendment Bill earlier today
CFF Director Bronwyn Holloway-Smith says “It’s great to see further progress on this Bill, however, we’re disappointed to see that Internet Termination is still making an appearance, and there is an alarming return to the Guilt Upon Accusation.”
Prime Minister John Key described the former Guilt Upon Accusation law as “draconian”.