'Net suspension on hold, improvement, new flaws

Internet account suspension on hold, other improvements made, but new flaws evident in copyright bill
Media Release – 3 November 2010

Today’s release of Select Committee revisions of the Copyright (Infringing File Sharing) Bill shows a win for the public with account suspension put on hold, but introduces reversal of proof that raises concerns, says InternetNZ

“I am pleased that the Committee has recommended that account suspension not be introduced now,” says InternetNZ Chief Executive Vikram Kumar.

“We would have preferred no remedy of account suspension being included in the legislation. The decision to leave it in but not commence its application is a second best option, but is far better than the current law, and better than the initial draft.

“I welcome the Minister’s announcement that the Government will back this change. We are hopeful that the notices regime will see a reduction in infringing, and that the financial penalties available via the Copyright Tribunal will provide all the incentives people need to cease infringing file sharing.

“There will need to be independent and credible monitoring of levels of infringement, and we look forward to discussing how this can be done with Government.

“Clearly, interested parties such as rights holders or their representatives cannot be the source of data that could lead to account suspension being implemented, as this would be an obvious case of self-dealing and very poor policy practice.

“There is a new issue of concern arising from the Select Committee’s work. This is new section 122MA the Select Committee has introduced. This section reverses the burden of proof in the regime by saying that rights owners’ notices will be considered conclusive evidence of infringement, with alleged infringers having to prove they have not done so.

“This reversal of proof is not a welcome development, and our initial view is that it should not be passed by Parliament.
The Committee has done good work in addressing some other issues that were present in the draft Bill. Among other things, they have clarified definitions of ‘Internet Service Provider’, ‘file sharing’ and ‘copyright infringement’.

The definition of ISP has sensibly been tightened to exclude universities, libraries and other business that provide Internet access. The Bill also tightens the definition of ‘copyright infringement,’ leaving it up to the Copyright Tribunal or District Court to determine whether a substantial part of a work has been copied.

Vikram Kumar says that “other issues remain problematic: our suggestion that section 92C in the Copyright Act be replaced by the same notice procedure set out in this Bill has not been taken up, and the Bill still leaves account holders entirely responsible for another person’s use of their account even where they have no control over them.”

“Overall, the Select Committee has improved the Bill compared with the original draft, and we congratulate them on doing so.

“Access to broadband is becoming ever more important, and keeping suspension off the table is recognition of that fact. Indeed over time, given that growing importance, it is unlikely that account suspension will ever be introduced, especially when the impact of the notice regime in this legislation is taken into account.

ENDS

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