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Netflix? Chill, says Goldsmith

No one will prosecuted under the TPP for watching Netflix US from NZ, Commerce Minister says. But there's a catch.

Fri, 08 Apr 2016

Relax, you won't get done for watching Netflix US if the Trans-Pacific Partnership ever comes into force – at least if Commerce Minister Paul Goldsmith is good to his word.

Yesterday, InternetNZ expressed its fears about the TPP's provision against breaking 'digital locks' or technology prevention measures (TPM), which are often used to restrict online content to one country or region.  Breaking one of these digital locks could criminalise consumers under the TPP  – even if there is no copyright issue with the content they watch after skirting a region block, Internet NZ warned.

"I am not aware of any individual who has been prosecuted for accessing Netflix, or any other similar service, and do not expect that to change under the TPP proposals," Mr Goldsmith tells NBR.

“If you are breaking a TPM to access foreign content in a way that breaches copyright,  this can be prevented under TPP [but] people breaking TPMs for private and domestic purposes will not be liable for criminal penalties under TPP, even if they are breaching copyright in doing so.

“Under the proposed exceptions outlined in the targeted consultation document, provided you are circumventing a technological protection measure to access foreign content websites, such as US Netflix, in a way that does not breach copyright, this would not be prevented under TPP.”

The TPP allows each signatory country to pass legislation that will exempt TPM unlocking from criminal liability. InternetNZ has encouraged the government to pursue this path.

Mr Goldsmith says it will. 

“The government intends to create exceptions in line with the provisions of TPP that ensure that people can continue to circumvent technological protection measures for legitimate purposes," he says.

That's good news for Netflix US junkies, and those who own a DVD player that can unpick DVD region-blocking (almost all of them).

Civil liability won't be exempted
But there is a catch, as InternetNZ policy adviser James Ting-Edwards points out: The TPP does require civil liability for breaking a TPM, without exemption.

Mr Goldsmith acknowledges that, “Yes, under the regime proposed, a person could be civilly liable for breaking a technical protection measure for private and domestic purposes if they infringe copyright in doing so. It’s worth noting that under the current rules they would be civilly liable for copyright infringement.”

And, unless you're Kim Dotcom, the chances of copping a civil action or otherwise coming onto the rights holders' radar are low.

After a burst of activity after the Copyright (Infringing File Sharing) Amendment Act was first past, Recorded Music NZ became frustrated by low damages awarded by the Copyright Tribunal. It has now given up on the three-strikes warning letter process (or, at least, it has until the Copyright Act is updated, which will happen some time after the TPP is ratified).

And the NZ Screen Association, representing the major Hollywood studios, has not brought a single action under the file sharing law. The inaction will be a comfort to those who seek their entertainment offshore (though of course they can still be hit by unilateral action by streaming video on-demand services, such as Netflix's recent push to block Kiwis from accessing Netflix US by using VPNs and other means).

Recorded Music NZ and the NZ Screen Association were hoping the Copyright Act would be beefed up with its post-TPP update. But, with the trade deal ending up a stalemate in so many areas, including many elements of copyright, there might not be much in it for them in the area of file sharing.

As it is, Mr Goldsmith has already watered down the current law by exempting mobile networks.

Truncated timeline
Mr Goldsmith brushed off a question about the government's desire to cut the time MPs on Parliament's foreign affairs, defence and trade committee have to review TPP submissions from one month to five days.

Opposition members of the committee call it an attack on democracy. 

"That is a matter for the select committee," Mr Goldsmith says.

National MP and committee chairman Mark Mitchell says, "It just means that we've got to work a little harder as a committee to get our report back into the House."

It's not clear why there is any need to speed things up.

The TPP must be ratified by countries representing 85% of the GDP of original signatories before it can come into force.

In practical terms, that means everyone is waiting on the US. 

But international trade expert Stephen Jacobi, and other pundits say a TPP ratification vote will probably not get in front of Congress until December or later.

And once it does get in front of US lawmakers, it faces a possibly protracted fight. Congress is seen hardening against the trade deal, with members taking their cues from presidential contenders Donald Trump, Ted Cruz, Hillary Clinton and Bernie Sanders, who have all made hay in their respective primary races from protectionist policies, including opposition to the TPP

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Netflix? Chill, says Goldsmith