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NZFact, representing the major Hollywood studios, has warned the New Zealand government not to follow France, where a court recently struck down a copyright law provision that allowed infringers to have their internet accounts cut off.
Yesterday the lobby group, whose members include Walt Disney Studios, Paramount Pictures, Sony Pictures, Twentieth Century Fox, Universal Films and Warner Bros., said it supported the French President Nicholas Sarkozy’s decision or reintroduce copyright legislation to the French parliament.
The so-called Hadopi law (named for the agency that would enforce it) was resubmitted minus its central provision - termination of internet accounts - which was struck down by France's Constitutional Council, which plays a similar legislative review role to the US Supreme Court.
The council said Hadopi said violated a central principle of French law - that people are innocent until proven guilty - by allowing nonjudicial authorities to disconnect a person's internet account after three warnings.
InternetNZ seized on NZFact’s support for a termination-less version of the law being reintroduced. Chief executive Keith Davidson saying it proved the copyright lobbyist either supported the freedom of expression promoted by the French council, or was confused.
NZ Fact executive director Tony Eaton flatly rejected either notion.
Mr Eaton told NBR his organisation supports three principles:
1. That online copyright violators are given three warnings over a period of several months;
2. That a high standard of evidence is required; and
3. That an independent arbitrator be available for instances where the standard of evidence is disputed.
It also unreservedly supports a fourth: that people’s internet accounts should be terminated if the arbitrator finds they have ignored three warnings about posting or download copyrighted material.
“There needs to be an ultimate sanction to show we’re serious,” says Mr Eaton, whose organisation says piracy costs creative industries $77 million a year in lost revenue.
Creative community split
Earlier this year, Section 92a of the Copyright Amendment (New Technologies) Act, split the creative community in New Zealand.
Some, like independent music icon Roger Shepherd, argued that Section 92a of the Copyright Amendment Act (S92), was a watered-down, overdue measure to counter the "cultural cannibalism" of casual piracy.
Others, like the Creative Freedom Foundation, which led the Facebook blackout campaign that garnered global attention, called S92 a “guilt by association law” and called for the government to halt its introduction and review the provision.
NBR noted that S92’s requirement for ISP’s to police copyright law was a clumsy, legally dubious idea - analogous to making Transit New Zealand investigate if someone robs a bank, then makes a getaway using one of its roads.
But, equally, that vaguely worded S92 did not give ISPs the right to cut someone’s account on a mere accusation. NBR also noted that termination without recourse to a court of law would be nothing new. All major ISPs currently have terms and conditions that allow them to arbitrarily terminate a person’s account.
The government asked the Telecommunications Carriers Forum, which represents major telcos and ISPs, to draft an ISP Code of Practice, as the new copyright law required, for implementing S92 (and by default, given that S92 was one, extremely vague paragraph, the very definition of the section).
The TCF discussed a code with provisions similar to those outlined by Mr Eaton above.
TelstraClear wasn’t happy, and walked out on the TCF working party.
The regulatory body required unanimous, UN-style consensus, meaning the ISP code was doomed to fail.
Shortly after, on March 23 - the eve of S92’s introduction - prime minister put the controversial section of the new copyright act on hold, pending a review.
Duck or cover?
That review, being carried out by the Ministry of Economic Development, is still underway. In the absence of any official word on progress, press speculation has run the gamut from a slight tweak in S92, to the entire copyright act being scrapped then re-written from the ground up.
NZFact, the Recording Industry Association of NZ (Rianz) and other copyright holders are arguing for some kind of extra-legal termination clause to stay in, facilitated by an independent arbitrator.
Others say that recent events in China and Iran, and related state censorship, show the importance of freedom of expression, and that internet accounts should never be terminated without a formal legal process.