A French law with parallels to S92 has failed, unexpectedly, at the last hurdle. “Le journal néo-zélandais The National Business Review” makes a cameo appearance in the debate - but in the end the law fails for an unexpected reason.
Section 92a of our Copyright Amendment (New Technologies) Act was harsh and illiberal in its intent, requiring ISPs to act to directly police the law, and create a policy to cancel the accounts of repeat copyright infringers.
But vaguely-worded S92 left not only the enforcement but the very definition of its policy to ISPs, and the Telecommunications Carriers Forum, representing major ISPs, responded with a relatively level-headed Code of Practice, involving three customer warnings over a period of up to 18 months.
The French legislation, by contrast, laid down the law in clear terms in legislation championed by President Nicholas Sarkozy and his wife, model-turned singer Carla Bruni.
While many called S92 a “three strikes law”, the brief clause did not in fact define how many offences constituted repeat infringements.
The French law, on the other hand, literally was three strikes law.
ISPs would have had to turn information about alleged copyright offenders over to the government.
The government would in turn give the pirate two warnings. If you copped a third, you would be kicked off your ISP, and put on a banned-list that stopped you joining another ISP (a bugbear Rianz and other NZ copyright holders had with S92 - yes, some thought it was too lenient - was that a kicked-off "offender" could simply join another ISP the next day). During a 12-month ban, an offender would keep paying for their internet connection, under the French legislation.
Nevetheless, the broad parallels between the French and New Zealand’s government’s efforts saw lobby group InternetNZ establish strong ties with its sister organisation in France - which helped ensure that stories about s92 in New Zealand got quoted and linked to by Liberation and other newspapers.
But while S92’s indefinite suspension, pending a rewrite, could be clearly traced to savvy lobbying and a pragmatic response from the government, the French law’s failure had nothing to do with ideological debate.
The law had broad language of the law had passed both houses of the French parliament, and the legislation had returned to the senate for its final sign off. With overwhelming political support for the legislation, this final procedural step was considered a done deal and many lawmakers left for an early Easter.
A number of Socialists - long opponents of the legislation - stayed behind, and defeated the law by as slim margin of 21 to 15 (there are 343 members of the senate altogether).