One step closer to NZ's copyright graduated response regime

POSTED BY Rick Shera
03 November 2010

posted in l@w.geek.nz | Intellectual Property | Copyright | Legislation

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The hurricane is now visible.  Well. actually, compared to the original section 92A or even the original Copyright (Infringing File Sharing) Amendment Bill, the Bill as just reported back from Select Committee is more like a gentle zephyr and whether it will have much impact remains to be seen (which does beg the question of whether the undoubtedly high cost is justified).

On a brief run through, here are the highlights:

  • There will be a 6 month implementation period before the regime needs to be complied with.  ISPs will be happier with that.
  • Many of the unworkably short timeframes have been extended.
  • No longer will there be two definitions of ISP in the Copyright Act which would have been confusing (ISPs operating this file sharing infringement regime will be called internet protocol address providers or IPAPs).
  • The definition of file sharing has been clarified, with the intention that only true peer to peer file sharing is caught.
  • Notices submitted by rights owners are to be conclusive evidence of infringement before the Copyright Tribunal, unless an alleged infringer can show that there are reasons or evidence to the contrary.  No standard of proof is given though.  If the alleged infringer can satisfy that burden (whatever it may be), the onus shifts to the rights owner to show infringement. This aligns more closely with the US Digital Millennium Copyright Act counter notice procedure under their notice and takedown regime ... which of course is the problem, since it means effectively that an alleged infringer is guilty unless they can show they are innocent.  A lot will depend on what level of proof an alleged infringer needs to provide.  This is one area that still needs some work I think.
  • The Committee has strongly indicated that Copyright Tribunal include a punitive element in any awards it makes up the $15,000 limit.  In other words, monetary awards (which go to rights owners) are not intended to be merely compensatory but to punish as well.
  • 6 month termination of an internet account is still there but it won't come into effect until activated by order in council.  So, it hangs like the proverbial sword of Damocles while we wait to see whether this regime has any impact.  Similar to the approach taken in the UK with the Digital Economy Act.
  • Again like the UK, an exception has been created for mobile operators because there is not much evidence of p2p copyright infringement taking place over mobile networks because of current speed and data constraints.  That will be reviewed at the latest by 1 August 2013.

Clearly a lot of compromise as there always is with copyright law development (and note that the Green Party issued a minority report rejecting termination as a remedy).  Whether the detail actually achieves all of the above aims needs to be looked at but, at first blush, much of what the likes of InternetNZ and the Telecommunications Carriers' Forum argued for has been accepted.

Disclosure of interest.  I acted for, and continue to assist, both InternetNZ and the Telecommunications Carriers' Forum in their analysis and responses to this legislation and its precursors.

POSTED BY Rick Shera
03 November 2010

posted in l@w.geek.nzIntellectual PropertyCopyrightLegislation

VIEWED 3889 TIMES

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