Code Aims to Quell New Zealand “3 Strikes” Fears

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The Telecommunications Carriers Forum (TCF) which represents ISPs and telecoms companies in New Zealand has drafted a code of practice which outlines the manner in which the new Section 92 "3 Strikes" regime should be handled by its members. It aims to dampen the many fears of Internet users.

Scheduled for introduction at the end of February 2009, Section 92 of the Copyright Amendment Act 2008 is causing concern for many in New Zealand, with the threat of Internet disconnection for those accused of sharing copyright works looming large. The Telecommunications Carriers’ Forum (TCF) has declared that its members believe that Section 92 “is seriously flawed” but nevertheless has just released a draft of its ISP Copyright Code of Practice for public consultation.

“The Copyright Act was amended in 2008 to include s92A which requires Internet Service Providers to have a policy to terminate the accounts of repeat copyright infringers in appropriate circumstances,” said TCF CEO Ralph Chivers. “This Draft Code is intended to be a template policy for ISPs, to assist them in meeting their obligations under the Act.”

The draft has been created by a group of New Zealand’s largest ISPs, the Internet Service Providers Association of New Zealand (ISPANZ) and Internet NZ, with input from the entertainment industries. It puts some much-needed ‘meat-on-the-bones’ of how allegations of infringement under Section 92 could be handled in practice, along with clarification of what would constitute someone being labeled as a “repeat infringer” for example.

This is how TCF propose that part of the system will work. First off, a copyright holder would identify an infringement and notify the ISP of the infringing customer immediately. The ISP would check to ensure that the complaint meets the standards required by the draft code and ensure that the evidence provided would be of such a quality that it would stand up in court. If it does not meet the standards, it will be returned to the copyright holder. If it is discovered that the copyright holder hasn’t already been ‘pre-approved’ to participate in the scheme, they are given the opportunity to join by paying a fee. The claim is then processed.

At this point the ISP checks to see if the customer has already been complained about. If they have received less than two complaints already, they receive what is known as an ‘Education Notice’. If they have received two of such notices, the ISP well then active the ‘Termination Process’. In either event, the copyright holder is notified of the action taken.

The definition of a ‘Repeat Infringer’ (and one who will be disconnected) is an Internet user who has received three Education Notices in any given 18 month period. Education Notices expire 18 months after being issued, effectively giving the user a clean sheet again.

There are also systems proposed for dealing with the actual termination of a customer’s ISP account, with provisions for taking extra caution over so-called ‘Vulnerable Customers’ (someone “who for reasons of health, disability or safety, or that of a member of their household, is reliant on their Internet Account”) and ‘Essential Service Providers’ (a “person who requires their Internet Account in order to deliver an essential service referred to in Part A of Schedule 1 of the Employment Relations Act 2000“)

Customers accused of infringement will also have the right to dispute the allegations made against them and the draft details the procedure clearly.

The draft Internet Service Provider (ISP) Copyright Code of Practice is available for viewing here. Submissions to the draft should be emailed to [email protected] or posted to: Telecommunications Carriers’ Forum, PO Box 302469, North Harbour, Auckland.

The closing date for submissions is 5pm, Friday 6th March 2009.


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