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The controversial Section 92A, drafted by the previous Labour government, was sent back to the drawing board by the National government after it was decided the original law was unfair.
The Copyright (Infringing File Sharing) Amendment Bill, which replaces 92A, puts in place a three-notice regime to deter illegal file sharing.
The measures include ISPs sending warning notices to their customers informing them they have infringed copyright, and extending the jurisdiction of the Copyright Tribunal to provide a fast track, low cost process to hear illegal file sharing claims.
The tribunal will be able to award penalties of up to $15,000 based on damages sustained by the copyright owner.
The bill, as referred to the committee, included the power for a District Court to suspend an internet account for up to six months, in appropriate circumstances. The committee has recommended that this power be included in the Copyright Act – as foreshadowed by the government – but not brought into force unless the notice process and the remedies in the Copyright Tribunal are ineffective.
This will enable the government to work with stakeholders to monitor and review the situation and determine when a further deterrent may be needed. It’s expected the issue will be reviewed in two years’ time, coinciding with the five-year review of the digital copyright amendments that were passed in 2008.
Another key recommendation is that the notice regime will not apply to cellular mobile networks until August 2013.
“This position is likely to change in the near future as technology advances and mobile broadband prices go down,” Commerce Minister Simon Power said.
Other recommended changes being supported by the government include:
- Clarifying that representative organisations can use the new
measures on behalf of copyright owners (by aggregating instances of
infringement), which will make the system both easier to use for owners and
easier for ISPs to administer.
- Redrafting the definition of file sharing to narrow its
scope.
- Enabling the Copyright Tribunal (or the District Court, if
internet suspension is brought into force) to decline to make an order where it
would be manifestly unjust to the account holder.
Commenting on the changes, the Creative Freedom Foundation said it was “disappointed to see that Internet Termination is still making an appearance, and there is an alarming return to the Guilt Upon Accusation”.
CFF Director Bronwyn Holloway-Smith said, “Temporarily disabling Internet Termination just delays the problem because the government has no independent statistics about infringement in New Zealand. This means that any decision to enable termination would have to be based on lobbying, and it could be enabled in Cabinet any week in the future – without a vote in parliament.
“Rather than the presumption of innocence, there is a presumption of guilt under section 122MA. This is exacerbated by the lack of any sanction for false or malicious accusations, making the process ripe for abuse,” Holloway-Smith added.
CFF, however, noted some positive improvements – notably the decision to revert back to the current copyright law's allowances of artistic reuse.
"Until New Zealand artists enjoy the same parody and satire protections that Australian artists do, lawmakers must be careful to ensure that fundamental existing public rights to access and remix our culture are not impinged,” Holloway-Smith said.
