Power makes Copyright Tribunal the new S92 sheriff

Justice minister Simon Power has revealed his proposed reworking of Section 92a of the Copyright Amendment (New Technologies) Act. ISPs are off the piracy law enforcement hook. But the hitherto almost unknown Copyright Tribunal could be about to become very, very busy.

A discussion document, released at 1pm today, suggests a three-stage process:

1. Where there has been suspected infringement, rights-holders could complain to the internet service provider (ISP) which would notify the subscriber. If there was further infringement, a cease-and-desist order would be sent.

2. If there was further infringement, the rights-holder could apply to the Copyright Tribunal for an order to obtain the subscriber's name and contact details.

3. The rights-holder could then serve an infringement notice. The subscriber could elect mediation (costs would be shared, and a mediator chosen from a government-approved list). If that failed or there was no response, the tribunal would convene, and could impose penalties ranging from fines to termination of a user's internet account.

The level of fines has yet to be set. Mr Power's office says that is one of the elements up for discussion.

The discussion document will now be open for submissions until August 7.

About to be mown under an avalanche?
Mr Power's proposal, hashed out by a Ministry of Economic Development (MED) working party, closely mirrors the compromise deals proposed by both copyright holders and user advocates during the past few weeks at both formal and informal meetings.

The question now: can it work?

Currently, the Copyright Tribunal, a statutory body that operates under the Ministry of Justice, has a chair person and two members - all of whom have day jobs on top of their part-time duties as tribunal members. As it stands, it's a body more used to dealing with libraries encountering the odd photocopying scandal than thousands of movie and music piracy allegations.

A spokesman for Simon Power’s office was unable to immediately say if the tribunal would get more funding, or man-power, under the proposed scheme.

Lowndes Jordan partner Rick Shera, who wrote InternetNZ's S92 submission, and consulted to the Telecommunications Carriers, says the Copyright Act (1994) would have to be revised to make room for a better-staffed, better equipped tribunal if the MED's recommendations are taking up. It will need more bodies on board for both reviewing and processing cases.

Start slow and focussed on the big stuff
The Creative Freedom Foundation's Matthew Holloway is one who things the tribunal model can work. He commented after NBR's original story this morning:

"It's not necessarily an unsolvable problem. It could make sense to initially restrict the number of complaints by dealing only with certain scales of infringement. The scale could be adjusted in time. This would be similar to the approach within Canada where the police have said that certain small scales of infringement won't be investigated because they simply don't have the resources."

Three S92 problems still unresolved
Lowndes Jordan's Mr Shera was quick to praise the general direction of the MED discussion document, and the new focus on due process.

However, after his first pass of the document, Mr Shera was concerned that a number of issues remain unresolved.

Specifically, the document does not define an ISP - a sticking point with the original S92, which was taken in many quarters to include any business hosting an internet connection for its employees.

Similarly, the document does not define what is a subscriber. Does it mean an individual internet account only, or can it mean an employee, or a business?

Mr Shera is also concerned that the "ultimate sanction" of account termination is still part of the mix.

Crossover hit
The MED working party was certainly in a good position to judge whether the Copyright Tribunal is an appropriate vehicle for handling complaints.

The head of the working party was none other than the Copyright Tribunal's current chair, Suzy Frankel, an intellecual property professor at Victoria University's Faculty of Law. Another member, Judge David Harvey, is the tribunal's immediate past chair. A third, lawyer Paul Sumpter, is a current member of the tribunal.

Read the full discussion document online here.

THE STORY SO FAR

April 3 2008: The Copyright Amendment (New Technologies) Act passes its third reading in parliament. The National opposition criticises aspects of the legislation, but in the end votes to support it becoming law, including the controversial Section 92a (S92) which calls for ISPs to have a policy for terminating the accounts of repeat copyright infringers.

January 21 2009: Attorney-general Christopher Finlayson's office tells NBR that "a last-minute stall won't happen": s92 will come into force as scheduled on February 27.

In the first sign of a possible cabinet split, responsibility for s92 moves to the office of justice minister Simon Power.

February 17 2009: The Creative Freedom Foundation (aka hitherto unknown husband and wife duo Matthew Holloway and Bronwyn Holloway-Smith) launch the Facebook black-out campaign against S92. It quickly goes viral, grabbing worldwide attention.

February 23 2009: Prime minister John Key announces that s92 will be suspended until March 27. The PM hopes ISPs will come up with a voluntary code of practice for dealing with copyright infringers by that time.

March 11 2009: TelstraClear pulls out of pan-ISP talks on an s92 code of practise, which under Telecommunications Carriers Forum rules needed 100%, UN Security Council level consensus.

March 23 2009: Prime Minister John Key announces s92 will be put on hold, pending a review and re-write by Ministry of Economic Development officials.

June 10 2009: France's constitutional court strikes down the termination provisions of the so-called Hadopi law, a rough equivalent to S92. Judges say it violates the right to free speech.

14 July 2009: Revised version of s92 due to go before the cabinet.