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A protest campaign against the Copyright Amendment (New Technologies) Act is catching on like wildfire as followers black-out their photos on Facebook and other social networking sites. But the protest is based on a wilfully-hysterical interpretation of the vaguely-worded law on the part of many of the campaign's followers.
A group called Creative Freedom has called Feb 16 to 23 “Internet Blackout Week NZ” to protest against what it calls the “the Guilt Upon Accusation law 'section 92A' that calls for internet disconnection based on accusations of copyright infringement without a trial and without any evidence held up to court scrutiny.”
The new copyright act is due to come into force on February 28.
NBR has sharply criticised the act as “unfinest hour in a serious of heroically unfine hours put in by outgoing minister Judith Tizard,” who drove the bill’s passage through the house before the last election.
NBR’s criticism is based on the act’s extremely vague wording, which is open to broad interpretation (it will be educational for some to read the text of s92A, immediately following this story). It will require a series of test cases to resolve the intent of the law, if indeed any judge is willing or able to find any sense whatsoever in the legislation. It’s a bad law, that should be put on hold.
NBR has also noted that now-Attorney General Christopher Finlayson piled into the law last April as an opposition MP, stating during the final reading: "I think this bill is very much a patch-up job and very much what I would call third-rate law reform legislation."
Coming ready or not
Creative Freedom, and other groups, have called on the attorney general not to enact the new law on February 28.
But in a turnaround, a spokesman for Mr Finlayson’s office told NBR on January 21 that "a last minute stall won't happen."
The bill will become law as scheduled February 28. The minister says he wants to give the legislation a chance to work in practice, though is open to tweaking it if it proves impractical down the track.
The three accusations myth
The act’s generally ominous tone, but near complete lack of specifics, has proved a fertile breeding ground for urban myth and speculation. There is no definition of how many infringements constitute a “repeat infringer” or mention that a mere accusation should lead to a take-down. But into the vacuum, the three-accusations-and-you’re-off myth has emerged (though Creative Freedom doesn't take such an interpretation itself; see comment below).
The act does requires each ISP to have a code of practice, detailing how it will deal with repeat copyright offenders – and the Telecommunications Carriers Forum has duly, and grudgingly, created a template code for others to follow. ISPs – and wonkily – companies with their own IP addresses that are defined as ISPs, will become unwilling enforcers.
Like all other parties grappling with the new law, the TCF struggles to define what constitutes a repeat infringer, or how they should be dealt with. The TCF, representing all major ISPs, has settled on a system of monthly warnings over a period of up to 18 months, with a accused person, or their company, being given the opportunity to dispute any accusation.
(TelstraClear, previously reported wanting to instantly kick off those accused, as it couldn't afford to adjudicate, has signed onto the TCF's code along with all the major ISPs. Think about it: why would any ISP want a fast-track process to sever its own when the law doesn't require one.)
TCF executive Ralph Chivers says the code does not yield to mere accusation, but rather requires evidence that would stand up in court.
Copyright holders aren't thrilled about that interpretation and, as they've always been able to, could take their own civil action against someone they accuse of piracy.
Nevertheless, the act has delegated not only enforcement but the very interpretation of its intent to ISPs, so the TCF's code will become our modus operandi; no one is going to bust down your door and yank your internet connection because you’ve watched three pirated youtube videos in a row.
There will be much sparring between the TCF, the government, and organisations like RIANZ (the Recording Industry Association of NZ) representing copyright holders.
It'll be a big mess, thanks to a poorly constructed law, but the result will not be repression but farce and paralysis– as is already the case in Australia, where similar legislation has already been enacted, and top-tier ISP iiNet has simply handed an infringement notice on to police. The boys in blue, in turn, say they have better things to do than enforce copyright controls on pop music video and game downloads.
Anyhow, those controversional paragraphs of the act in full:
INTERNET SERVICE PROVIDER LIABILITY
Internet service provider [sic] must have policy for terminating
accounts of repeat infringers
“(1) 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.
“(2) In subsection (1), repeat infringer means a person who repeatedly
infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.