So far, plain sailing for new-look S92

Lobbyists on both sides have offered only guarded criticism of Simon Power’s reworked version of the controversial anti-pirate clause.

Some say due process isn't enough, and want account termination taken off the table altogether. Copyright holders are lobbying for it to stay. But in constrast to the highly-charged tone of arguments over the original clause, the renewed debate is mostly moderate, and constructive. An emotive stand-off has been defused.

On Tuesday, justice minister Simon Power revealed the new-look Section 92a of the Copyright Amendment (New Technologies) Act, which is now open to public submissions until August 7.

Its key provision is that after an initial complaint, the suggested new process takes enforcement of a copyright complaint out of the hands of an ISP, and puts it in front of the Copyright Tribunal, a statutory body that operates under the Department of Justice. The tribunal can levy fines, or ultimately, terminate an account.

So: advocates get the due process they were after, and copyright holders retain their desired “ultimate sanction”.

There are a number of logistical questions. So far, Mr Power’s office has offered no comment on how it plans to fund or staff-up the Copyright Tribunal, which at this point in time has one chair and two members - all of whom have day jobs as well.

The discussion document currently being circulated also doesn’t set any specific level of fine, which I suspect has helped mute response. Neither does it set the cost of mediation, which will be shared by both parties.

There also needs to be a more clear definition of what constitutes and ISP and an account holder - that is, can a business have its internet connection terminated because of the actions of a rogue employee?

"Toxic remains"
InternetNZ executive director Keith Davidson has emerged as perhaps the strongest critic of the the new S92, which he said "combines the benefits of a notice approach with the toxic remains of a termination regime ... Nobody condones copyright abuse, but the termination of a household or business internet account is simply out of proportion to the alleged offence.

“The demand for this remedy comes from a subset of the music and movie industries who are pleading for special treatment they do not deserve. Such pleading has been faced down in France and in the UK and our Government should follow suit. Termination should be off the table.”

Mr Davison says overseas, simple education notices have reduced offending by 70%.

NZFACT - representing the major Hollywood studies - wants termination to stay.

So does Rianz (the Recording Industry Association), which represents 60 local record companies, and 900 local acts.

Although praising the "wonderful" move to due process, and targetted fines, the one-time black-out campaign organiser Creative Freedom Foundation  says “As artists, we don't want people's internet taken away to protect our copyright. This is too severe a punishment, and many consider it to be a breach of human rights."

My money is on the government keeping the termination provision. Yes, we have a Supreme Court, but it doesn’t automatically review legislation in the manner of the US Supreme Court, or the Constitutional Council that struck down a termination provision in similar French legislation. Beyond that, New Zealand simply has no tradition of big gestures to support big ideals like free speech. Mr Power will likely see a termination provision, backed by due process provisions, as the easiest way to keep copyright holders onboard.

The CFF has noted that the draft new S92 has no penalty for making a false claim. Ceratinly, adding one would be something that would make internet users, and artists in the CFF camp, not comfortable with termination exactly, more more likely to lump it.

Record companies: shorter process needed
Like every other group, bar InternetNZ, Rianz praises the new-look S92 overall, especially the potential for accounts to be cut.

“It is important that the Minister of Commerce recognises that unlawful file sharing is very costly to our creative industries and that he and this government remain determined to deal with it,” said Rianz chief executive Campbell Smith yesterday.

However, Mr Smith also said he was “concerned that the reviewed s92A process is unduly complex and the timeframe too lengthy” and that “The proposed procedure could certainly be tighter, clearer and more effective.”

Another record industry group, Independent Music New Zealand (IMNZ), which represents 80 local labels and distributors, says the new S92 is “fair and robust”. It hopes a “simple, transparent and time-efficient” tribunal process will emerge.

“Without adequate protection for copyright holders we will be unable to move forward with new, innovative and legal online business models,” said Damian Vaughan, IMNZ Business Development Manager.

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1 Comment & Question

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Due process entails the issue being heard in a court of law. Simon Mugabe Power should know this.

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