Simon Power was interviewed by Sean Plunket (MP3) about the recent decision to delay Section 92A to allow for the TCF and APRA/RIANZ/NZFACT to reach agreement. In the interview Sean Plunket asks "So you're leaving it to two groups, that are non-government, with no representation from the users subject to the law, to work out how to implement the Copyright Act?". Well, quite. Not only aren't customers involved but many copyright holders aren't neither are the majority of ISPs (under the new broad definition of an ISP). Read about the two things you can do, inside...

There are two things to do,

ONE: We need to help solve APRA/RIANZs legitimate grievances about illegal downloads in a way that respects our rights. Expecting thousands of untrained ISPs to be experts at data forensics and copyright law is impractical and ridiculous, as is giving the right to judge to copyright holders. We and many others have suggested an independent 3rd party to judge this... a Copyright Tribunal (technically, an expansion of scope of the existing Copyright Tribunal). Read about the support for this idea.

What you can do: It so happens that the Law Commission is calling for submissions on current tribunals. Submissions close this Saturday the 28th, so politely tell them that they can help resolve this problem by talking with the Government about this.

TWO: The TCF draft is open to comments from anyone and you should have your say.

What you can do: I suggest printing out the 33 page draft (PDF) and makes notes on it, perhaps while consulting our forums, the Internet NZ comments on the TCF Policy and Brenda Wallace's draft submission.

As always, keep it polite and friendly, it'll be persuasive that way. Tell the TCF who you speak for, how many people, and which specific parts make sense.

I suggest talking about these core issues:
* Alternate Section F on pages 30-33: that allows for approved copyright holders to judge disputes (yes, the accuser decides whether the accused infringed copyright).
* How there needs to be an independent body that decides this because expecting thousands of untrained ISPs to do this is risky. Suggest that they work with the Law Commission and the Copyright Tribunal for this.
* Who should pay for investigations?
* Anything else? Post in the comments and I'll include it here.

Thanks everyone!

How about requiring the all those gathering evidence of copyright infringement to be, or use, only agents/companies licensed and operating under New Zealand's Private Investigtors and Security Guards Act 1974.

Lets think about this from a 'first principles' approach - ie what would make a good system of enforcing copyright for all rights holders, not just those who use APRA as their licensee. And one that is consistent across the range of copyright issues - rather than singling out one media on one channel.

Here's my starter for 10:

- independence: process needs to be overseen by a body that is independent of rights holders, their agents, publishers, distributers (including ISPs) and users

- uphold a standard of evidence: there needs to be a clear evidential standard set for the process which any complaint must meet

- natural justice upheld: principles of natural justice should prevail - which includes accused has a right of response before any decision is made or action taken

- equality of access: the process should be accessible to all rights holders - not just those represented by agencies such as APRA. The process should be accessible also to all respondents. This suggests a disputes tribunal type process where lawyers are not encouraged to participate!

- media and content neutral: the process should be the same for all types of copyright works and all types of distribution - so shouldn't be a special process for music downloads, separate from the process, for example, for plagiarism of paper-published works

- threshold for action: there should be a threshold for complaints to be heard, so that it is not clogged with minor infringements. This could include requiring a direct discussion between parties as a first option - and further process only entered into when this fails. In addition, complainant needs to establish that the infringement has resulted in a significant financial and/or reputational loss. The financial loss could then be quantified. Reputational loss would at least require that the work has been misrepresented as the original work of another person.

- appropriate remedies: the process should be able to enforce appropriate remedies. These could cover financial compensation, payment of royalties, public acknowledgement of the copyright holder and removal of material from publication, display or distribution.

- escalation of prosecution: where a person has been repeated found guilty through this process, there could be an option to escalate the prosecution to criminal courts - where stiffer penalties by way of fines or imprisonment could be considered.

What you think? Feel free to argue me down!

I have to question the premiss, "We need to help solve APRA/RIANZs legitimate grievances about illegal downloads in a way that respects our rights."

The music industry has had well over a decade to find their own solutions. They have fumbled or ignored every opportunity since. At the same time plenty of other people have found ways to make money online. Apple managed to basically steal their whole business - distributing music. Radiohead managed to make millions giving their music away without them. And plenty of New Zealanders have also done well. I for one am making a very tidy income selling digital widgets online, even when 19 of 20 copies of my product are downloaded illegally.

Lets remember the status quo is working very well for many people. The music industry has failed to adapt, let them fail, dont hand them a business model. This is capitalism, let the cream rise.




I think a copyright tribunal is a nice idea in principal, I certainly agree with all of Davee's 10 points, but in reality its an impractical solution.

Firstly, global companies could take New Zealanders to it, but New Zealanders could not take global citizens to it. As the internet is global, the chances of someone infringing on your copyright coming from New Zealand and being able to be dealt with in the copyright tribunal is pretty slim.

Secondly there is a high cost associated with a system like this to the person defending their copyright. I assume the tenancy tribunal is set up in a similar way, you need to fill out paper work and front up for an hour or so. You dont take someone to the tenancy tribunal for steeling your coffee, but you do take them there for not paying a months rent. So unless someone has really ripped you off it is not worth going there.

Finally, proof can be very difficult online. We have seen this in the RIAA cases in the USA. Unless you have access to someones computer, activity originating from an IP address that they are associated with is hardly enough to prove something beyond reasonable doubt.

So I think the copyright tribunal would not be much help in most cases, either because the perpetrator is overseas or has not done enough damage to warrant going to the tribunal. In the few cases where it is worthwhile, establishing proof will be fairly difficult. But for many New Zealanders, the system is not broken to begin with, so why fix it?