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Copyright bill provisions trample Kiwi rights further, experts say

Draconian provisions in the amended Copyright Act – due to come into effect by the end of the year – effectively throw New Zealand’s ISPs under the bus.

New Zealand’s ICT community yesterday released a joint statement decrying the state of the amendments made to the Copyright Act, which effectively force them to become the “police” of the internet; a costly, and ultimately impossible goal.

The Copyright (New Technologies) Amendment Act passed 111 votes to 10 in April with support from both National and Labour. The cabinet is expected to bring it in to force sometime before the end of the year.

Like the poorly drafted Electoral Finance Act, the new law has a few hidden surprises in it that reduce human rights.

The offending clause is 92c: “An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.”

Unfortunately the phrases “reasonably implement,” “in appropriate circumstances” and “repeat” are all undefined and open to a wide range of interpretations.

The new definition of an internet service provider also goes much further than traditional definitions. It now includes schools, universities, libraries and any other organisation that provides internet services.

It basically means that ISPs have to make movements to cut off customers who transfer copyrighted material. This means that they have to spy on their entire client base, tracking what they’re doing on the internet.

The legal onus is completely on the ISP, not the individual doing the offending.

Effectively, a single person’s bad behaviour can bring down an institution, all because certain elements of the recording, videogame and movie industries can’t solve their own piracy problems.

“Businesses support the need to protect intellectual property, and we are sympathetic to the significant problems the music, movie and gaming industries face. However, balance is the key. Protecting one person’s interests at the expense of others is completely inappropriate,” Telecommunications Carriers Forum chief executive Ralph Chivers said.

More sadly, it’s symptomatic of a technologically uneducated group of political decision makers being taken for a ride by lobbyists putting their interests ahead of the nation.

Only the Greens and the Maori party voted against it.

“The potential for infringement of human rights is a significant concern to us. Arguably one of the great benefits of the Internet has been the strengthening of human rights and the development of democratic freedoms around the world. However, this law change has the potential for Internet users to have their service disconnected on very weak grounds, undermining the fundamental right of ‘innocent until proven guilty’,” InternetNZ Executive Director Keith Davidson said.

Groups such as New Zealand Federation Against Copyright Theft and the Recording Industry Association of New Zealand have pledged to work with ISPs helping them through to a solution, Mr Chivers said.

Internet service providers are now exposed to legal risk from their customers if they act prematurely, and to legal risk from copyright holders if they don’t act quickly enough.

“They are caught in the middle without any form of legal protection and will be required to go through a costly and complex process to solve a problem that is not of their making,” Internet Service Providers Association President Jamie Baddeley said.

Chief executive Ernie Newman of Telecommunications Users Association said it was unacceptable that Parliament had placed the burden of sorting out this mess on ISPs.” ISPs in New Zealand are socially responsible; it’s not their job to interpret and enforce vague laws, particularly when they interfere with their customers’ rights,” he said.

Shane Jones, tipped as a future leader of Labour, commended the bill.

“Although the topic is somewhat dry, its application is exciting.”

Key points from the Copyright (New Technologies) Amendment Act:

- Passed through Parliament in April, and is expected to come in to force in October or the end of the year.

- Up until now, ‘format shifting’ (moving music from CDs to iPods etc.) was illegal; this bill was meant to correct that. Instead, it offered content providers the ability to ‘opt out’.

- It is now illegal to circumvent copyright protection on CDs (again, these CDs can’t be copied to iPods or duplicated)

- Video format shifting was not implemented.

More by by Allan Swann