S92 should now be repealed altogether, InternetNZ says. Implementation of the controversial clause of the delayed copyright law, and the associated ISP code of practice, without the third-largest internet service provider on board would “invite disaster.”
User advocate and .nz domain name commercial administrator InternetNZ says TelstraClear's decision to bail on the Telecommunications Carriers' Forum (TCF) copyright code of practice means the government should promptly repeal s92.
Executive director Keith Davidson, a long-time s92 critic, says TelstraClear's decision means the TCF cannot now implement the code.
"It is clear that the agreement that the government sought will not now be reached between ISPs and rights holders. To attempt to bring s92 into force now would invite disaster,” Mr Davidson says.
InternetNZ is a member of the TCF working party on S92, and will continue to participate, says Mr Davidson: “The working party’s efforts have made the best of an impossible job, and the work has not been wasted. InternetNZ will continue to contribute to the development of the code, while recognising that it can no longer be implemented in the way that was expected.”
Government agency could step in
TCF chief executive Ralph Chivers tells NBR that unanimous consent among its member ISPs and telcos is needed to pass the voluntary code, as requested by Prime Minister John Key when he delayed the Copyright Amendment (New Technologies) Act on February 23.
With no united front between ISPs now possible, “the document will fail” says Mr Chivers, and an independent mediator between the TCF and rightsholders like RIANZ cannot be appointed.
Justice Minister Simon Power has pledged to step in if the two parties can’t reach a voluntary agreement by Mr Key’s March 27 deadline.
Mr Chivers says he has updated the minister on TelstraClear’s withdrawal but has yet to receive a response.
With the envisaged independent industry mediator now apparently off the table, another option is for a government agency to assume the same role, says Mr Chivers, who has previously envisaged a disputes tribunal style process to deal with minor cases of alleged copyright infringement. “There are government agencies already there who could do the job.”
Other lobby groups were quick to praise Telstra’s move.
The Telecommunications users association "agrees entirely with TelstraClear that the law is flawed,” chief executive Ernie Newman says.
“The position they have taken is very principled. It genuinely reflects concern that any code adopted by the TCF could effectively close off options for the industry’s customers who are owners of business networks [which could be defined as ISPs under s92]
“At the same time Tuanz recognises the frustration this development will mean for the many people within and around the TCF who have tried very hard to get a code together despite knowing they were dealing with very poor legislation."
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