Tuesday 3:03pm (14th July 2009)
Terminator 2: MED release Section 92A Proposal..MED have announced a Section 92A Review Policy Proposal Document for public comment. The document has only just been released and we're working through it but it appears to be significantly better, affording due process and for independent experts to decide - the Copyright Tribunal. As anticipated however there is still internet termination involved which is a completely inappropriate sanction for shared internet connections that will inevitably punish many people for the actions of one. Targeted fines would be more appropriate than the scatter-shot approach of internet termination and they allow compensation to artists. More on the draft, inside...
Firstly, congratulations to Hon. Simon Power, the Working Group, and MED for ensuring due process around copyright infringement allegations.
MED summarise the process as follows (RH = Copyright Holder)
The Proposed Approach: Summary
Phase 1- First Infringement and Cease and Desist Notice Procedure
Where a RH considers on reasonable grounds that there has been online copyright infringement of one or more of its works, RHs may invoke the section s92A procedure by sending a first infringement notice to an ISP. The notice will contain sufficient details to allow the ISP to identify the subscriber concerned. This notice must then be forwarded by the ISP to the subscriber. If there is further copyright infringement by that subscriber, a RH may send, via the ISP, a cease and desist notice. The subscriber will have an opportunity to reply to either notice by way of a response notice directly to the RH with their name and contact details attached. Upon receiving a response notice, a RH will be required to accept or reject it and inform the subscriber accordingly.
This raises two significant questions,
1. Who's an ISP? Is it the conventional definition or the existing broad definition that covers practically anyone with a shared internet connection or website?
2. Who's a subscriber? Can an organisation's internet be terminated because of misuse by a rogue employee, a child, or a virus infected computer?
MED continues...
Phase 2 - Obtain Copyright Tribunal Order
Where a RH considers on reasonable grounds that there has been further (repeat) copyright infringement by a particular subscriber after a cease and desist notice has been sent, and the subscriber concerned has been provided with an opportunity to respond by way of a response notice, a RH may apply to the Copyright Tribunal to obtain an order requiring the ISP to provide the name and contact details of the alleged copyright infringer (the subscriber).
Currently people can apply to a court order for an ISP to reveal account holder details. This "Phase 2" may be comparable to this or it may be a privacy issue that could be abused. It's too early to say right now.
MED continues...
Phase 3 - Copyright Tribunal
A RH may then register an infringement complaint with the Copyright Tribunal which will ensure that the infringement complaint complies with requirements in statute/regulation. A RH may then notify the subscriber that an allegation of repeat copyright infringement has been lodged against them. The subscriber will have an opportunity to respond to the allegation and to elect to proceed to mediation. The Copyright Tribunal will be convened unless agreed otherwise. The Copyright Tribunal, in addition to available relief by way of damages, injunctions, account of profits or otherwise, may consider ordering a subscriber to pay a fine or an ISP to terminate the subscriber’s internet account.
Many New Zealanders are against internet termination and it goes against trends in the European Union.
The UK have said it well "We currently have no intention of legislating to terminate the accounts of persistent copyright offenders [...] We don't consider this to be a proportionate response, especially given the importance of internet access in today's society, where many services including banking, health and education are increasingly delivered online. Disconnection is even less fair in situations where a number of people in a household may share one broadband account."
It's a pity that the draft doesn't appreciate this point.
Due to New Zealand's geographical isolation the internet is a vital tool for connecting to the rest of the world, and is also becoming more pervasive with vital services moving online such as parts of government, health care (records, scheduling) and social interaction tools (newspapers, phone, email, social networks). Disconnection may hinder people's ability to pay bills, operate their business or do their job, access banking, education, insurance, etc. Due to this the internet is already a necessary service like other utilities such as the phone and postal systems. With internet use showing no signs of slowing, in future years disconnection will be seen as a shortsighted and increasingly unfair penalty.
For artists, fines have the potential to include compensation for copyright infringement, whereas broad and indirect punishments that harm innocent people will simply reflect badly on artists.
It's likely that there will be significant business compliance costs with termination. ISPANZ have estimate that 90% of NZ Businesses use network devices that are currently incapable of tracking and we see no coverage of this in the draft (although it's unsure whether we would expect at this early stage).
Public comments end on Friday 7 August 2009.
See also:
Chris Keall at the NBR has some analysis.ActivityPress coverage
Public Address.net comments on the MED s92A draft
Kiwiblog reviews the 3 phased approach
ComputerWorld magazine has quotes from various IT groups
Labour's Clare Currans response.
Brenda Wallace's detailed writeup
