Modified 3 Strikes Back on Agenda For New Zealand Pirates

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After the previous Labour government failed in its attempts to set up an ISP code of practice to deal with copyright infringements via section 92a of the Copyright Act, today sees new proposals revealed. ISPs won't be expected to police their networks, but instead decisions - including 3 strikes - will be made by the Copyright Tribunal.

In 2008, the New Zealand government passed so-called ‘3-strike’ legislation designed to have alleged repeat copyright infringers disconnected from the Internet. A code of practice was drawn up by the entertainment industries and ISPs, which attempted to create a framework for ISPs to disconnect alleged infringers. But it wasn’t to be.

After outrage in the Internet community coupled with resistance by ISPs led to a failure to reach agreement in the allocated period, Prime Minister John Key announced that the law would be have to be delayed. In the end not even a delay would be enough to reach consensus and it was announced that Section 92A of the Copyright Act 1994 would not come into force on 27 March as scheduled, but instead would be amended to address areas of concern.

Prime Minister Key set Minister of Commerce Simon Power to work on a replacement and today he put those proposals to the cabinet.

The main development is that ISPs will no longer be expected to perform the role of ‘Copyright Cops’ for the entertainment industries. Instead, that role will be performed by New Zealand’s Copyright Tribunal which at least at this early stage appears to offer those accused some kind of due process via an independent body.

The bad news is that the fraught with difficulty and disproportionate response of disconnections – aka ‘3 Strikes’ – is still on the table. The new framework is proposed as follows;

Step 1: In the event that a copyright holder records an infringement of its rights by an Internet user (unauthorized uploading), they will be required to send an initial infringement notice to the corresponding ISP. Once the account holder is identified by matching the alleged infringing IP-address with customer records, the initial infringement notice will be passed to him or her, via the ISP.

Step 2: Should there be another infringement, the above process would be repeated but this time the account holder would also receive a ‘Cease and Desist’ notice. At this point an account holder would have the opportunity to respond to copyright holders.

Step 3: If after issuing a Cease and Desist notice infringements continue, the copyright holders can then apply to the Copyright Tribunal to require the corresponding ISP to hand over the personal details of the account holder. Interestingly copyright holders can already achieve something similar, simply by going directly to the courts.

Step 4: At this stage copyright holders are free to issue a complaint with the Copyright Tribunal, who will in turn notify the account holder that an additional complaint has been made against him or her. The account holder is then given the opportunity to put their side of the story and move to mediation. In this instance costs would be shared and a government-approved mediator would be provided. Should this step fail the Copyright Tribunal would decide from a range of penalties such as fines or ultimately, disconnection.

Of course, the above is not without its issues.

Right now New Zealand’s Copyright Tribunal, a body operating under the Ministry of Justice is a small concern used to dealing with smaller, more manageable copyright disputes. Indeed, currently it has only three part-time staff. It’s going to need more resources if it’s to deal with these cases effectively.

However, Matthew Holloway from The Creative Freedom Foundation believes the tribunal system could be workable;

“It’s not necessarily an unsolvable problem. It could make sense to initially restrict the number of complaints by dealing only with certain scales of infringement. The scale could be adjusted in time. This would be similar to the approach within Canada where the police have said that certain small scales of infringement won’t be investigated because they simply don’t have the resources.”

The discussion document for the amended Section 92a will be open for submissions until August 7.

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