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Internet copyright proposal needs more tightening up

By Scott Moran, Partner

First published in The Press 2 March 2009

The controversial amendment to copyright legislation is too vague, according to leading IP law specialist Scott Moran, of Duncan Cotterill.

Section 92A was set to come into effect on Saturday, but has been delayed by a month following widespread criticism. The amendment essentially requires internet service providers to implement a policy to axe services to customers who are ‘repeatedly’ infringing copyright. 

“The trouble is that the amendment doesn’t prescribe or guide in any way how and in what circumstances internet services should be cut. These policies are being left to service providers themselves and so anything is possible,” Moran said.

“For instance, internet services could be disconnected following a few mere allegations of copyright infringement - with no means to dispute the accusations. Or an employee illegally downloading a few songs, without an employer’s knowledge, could result in the service provider cutting the employer’s internet service account.”

Moran said it was the  absence of any prescribed legal process surrounding the termination of internet service that worried service providers and internet users alike.

“The inadequacies of this section were also recognised by the Select Committee, which deleted section 92A when the amendments were first being considered.

“Despite the committee’s disapproval of the section, it was re-instated and enacted last year. Even attempts by Labour MP Clare Curran earlier this month to delay this amendment were blocked by National. But the opposition to this legislation has become too hard for the Government to ignore,” Moran said.

The Telecommunications Carriers’ Forum (TCF), whose membership includes the major players of the industry in New Zealand, has drafted an ‘Internet Service Providers Copyright Code’ to attempt to address the shortcomings of the amendment.

Recognising that termination is an extreme consequence, the draft Code puts the onus on the copyright holder to identify the infringement and prove that it has occurred. So the mere accusation of infringement is insufficient.

The draft Code also details the process that must be followed before the internet service can be cut. For instance, it proposes several warnings before services are chopped and the opportunity for account holders to dispute any accusations of infringement. It recognises the unfairness of holding internet service account holders responsible for the actions of others not under their control. For example, the draft Code reassures that an employer’s internet service account would not be terminated because of copyright infringed by staff using the internet while at work. 

It also sets out exceptions to the termination policy for those providing essential services (such as hospitals) or people who are vulnerable and dependent on their internet access.

The Government has announced that the start of the amendment has been delayed to allow the industry to settle on a code for self regulation.

Moran said that even if a Code is agreed upon, the amendment in its current form does not require internet service providers to adopt this code. “Given how serious the disconnection of services would be, it would seem more appropriate that government prescribe the mechanics of termination for copyright breaches and make this apply to all ISPs. Government may be better equipped to achieve a balance between the competing interest groups.

“Until this issue has been resolved, internet service account holders should review the copyright infringement termination policy of their ISP to make themselves aware of the risks they could face.”

Duncan Cotterill received the Specialist Award for Intellectual Property Law at the 2008 NZ Law Awards.

For further information, contact:

Scott Moran, 04 499 3280, 021 434 5520, s.moran@DuncanCotterill.com