Joint Media Statement
Telecommunications Carriers’ Forum
InternetNZ
Internet Service Providers Association of New Zealand
Telecommunications Users Association of New Zealand
New Zealand Computer Society
Women in Technology
Auckland, 19 September 2008
ICT Industry Moves To Address Copyright Confusion
“A deeply flawed law that undermines fundamental rights and simply will not work.”
That is what the telecommunications industry, internet service providers, user groups, internet advocates and IT
professionals think of parts of the recently passed Copyright (New Technologies) Amendment Act.
The TCF is today announcing steps to create a Code of Practice to guide ISPs and internet users through a legislative
minefield created by section 92A of the Copyright Act.
“Section 92A has achieved one thing, and one thing only”, TCF CEO Ralph Chivers said today, “uniting the ICT sector and
others who will be affected in an unprecedented show of solidarity against it”.
“While we recognise that the Act has introduced a number of positive measures, some hastily inserted last-minute changes
have placed an unacceptable burden on internet service providers and have the potential to significantly undermine the
legal rights of internet users”, Mr Chivers said.
Section 92A, when it is brought into force, will require ISPs to “reasonably implement” a policy to disconnect ”in
appropriate circumstances” the internet services of users who have repeatedly downloaded or uploaded infringing music,
movies, games and other copyright material.
“The Act gives no guidance on what ‘reasonably implement’ or ‘in appropriate circumstances’ mean,” Mr Chivers said.
“This leaves the door wide open to those who seek disconnection of an alleged repeat infringer based on flimsy evidence,
or worse, allegations alone.”
“Identifying repeat offenders will not be easy. A complex data matching exercise will be required, and even then it will
not always be clear who the real offender is, particularly when an internet account is used by a family, a business or a
school. The potential for an alleged offender to be denied natural justice is significant. For these reasons, a court
order backed up by solid evidence would normally be required before taking such invasive action.”
“Businesses support the need to protect intellectual property, and we are sympathetic to the significant problems the
music, movie and gaming industries face. However, balance is the key. Protecting one person’s interests at the expense
of others is completely inappropriate,” Chivers said.
InternetNZ Executive Director Keith Davidson agrees. “The potential for infringement of human rights is a significant
concern to us. Arguably one of the great benefits of the Internet has been the strengthening of human rights and the
development of democratic freedoms around the world. However, this law change has the potential for Internet users to
have their service disconnected on very weak grounds, undermining the fundamental right of ‘innocent until proven
guilty’.”
“Rights holders and the industry need to work together, to find more pragmatic solutions. We need to preserve the
service providers’ obligations to offer unencumbered access to the Internet for their customers but at the same time
find ways to adequately protect copyright,” Davidson said.
Internet Service Providers Association President Jamie Baddeley likened the situation to putting private security guards
in to quell a riot without body armour. “The worst aspect of this law is that it provides no protection to ISPs who try
and implement the law’s requirements in good faith. They are exposed to legal risk from their customers if they act, and
to legal risk from copyright holders if they do not. They are caught in the middle without any form of legal protection
and will be required to go through a costly and complex process to solve a problem that is not of their making,” Mr
Baddeley said. “This has the potential to put some of our smaller innovative members out of business - undoing a lot of
the great work the government has previously done to develop a more competitive environment.”
“It is unacceptable that Parliament has placed the burden of sorting out this mess on ISPs,” TUANZ CEO Ernie Newman
said. “ISPs in New Zealand are socially responsible; it’s not their job to interpret and enforce vague laws,
particularly when they interfere with their customers’ rights. Worse still, the definition of ISP in the Act captures
schools, universities, and libraries – in fact just about anyone who provides internet access to someone else. The loose
language Parliament has included in the legislation will require an army of lawyers to interpret, at the expense of ISPs
and ultimately, their customers.”
“The New Zealand Computer Society strongly supports protection of Intellectual Property, but this isn’t the way to do
it”, NZCS’s Chief Executive Paul Matthews added. “You could use the same flawed justification that underpins this law to
force The Warehouse to ban someone from shopping there for their food and clothes just because they are accused of
copying a few DVDs that they have bought. Yes, copyright infringement is wrong, but it needs to be proven first and the
penalty kept in proportion. Termination of all internet access in this day and age of online education, social
networking and electronic services is a huge penalty,” Matthews said. “This is simply bad law whichever way you look at
it.”
Cheryl Horo from Women in Technology pointed to the value of solving the underlying issues. “Ultimately it is in all of
our interests to ensure that artists, as with our technology businesses, receive a fair return on their investments. New
Zealand’s film, music and gaming industries are increasingly dependent on advanced information technology - it is in all
of our interests to help these sectors grow and develop. Education will play an important role in progressing this
issue.”
Recognising the difficulties created by s92A, the TCF is developing a Code of Practice aimed at providing a consistent
and workable approach to meeting the requirements of the Act.
“We are grateful for the early work done on this issue by InternetNZ,” Mr Chivers said. “We will build on this work to
create an industry code that has wide buy-in, so that users are appropriately protected and ISPs are able to continue
providing services without unnecessary legal risk.”
“The TCF will continue to consult widely as we develop the Code, including with copyright holder groups. We accept that
copyright infringement is a problem and we will do our part to ensure it is appropriately managed,” Chivers said.
“In our view, it makes sense to delay the introduction of section 92A to give time for the Code to be developed. In our
discussions with copyright holders and government we have stressed the need to find a better way of managing this
problem – section 92A as it stands simply won’t cut it. Regardless, it will be the responsibility of the next Parliament
to repair the problems caused by this deeply flawed legislation.”
ENDS
Q
What is an Internet Service Provider?
Under the Copyright Act, the definition of an Internet Service Provider goes much further than the traditional ISP. It
includes schools, universities, libraries and any other organisation that provides internet services.
Copyright Act s92A – what it says
“An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate
circumstances, of the account with that Internet service provider of a repeat infringer.”
Unfortunately, that’s pretty much all it says. The phrases “reasonably implement”, “in appropriate circumstances” and
“repeat” are all essentially undefined and open to a wide range of interpretations.
Implementing this law will challenge even the most well resourced telecommunications company, let alone universities,
schools libraries and other smaller providers of internet access.