National Blog of New Zealand

Granting creators of content a temporary monopoly over their content in order to derive financial return is part of fostering a creative New Zealand and upholding our international intellectual property agreements. Development of content takes considerable effort and if we value the fruits of professional commercial creativity (questions of legitimacy aside) then we need to safeguard the property rights of creators.

As we’ve seen with the recent pullback on Digital Rights Management (DRM) the non-rival nature of ‘intellectual’ property combined with emerging technologies has made it increasingly difficult to enforce copyright. The largest conduit used for the dissemination of copyright infringing material is the Internet, an international technologicaly and legally complex system making rights management all that more arduous.

In an attempt to improve the balance the Copyright (New Technologies) Amendment Act 2008 was passed into law on 11th April 2008. It’s primary role was to update our Copyright Act 1994 to deal with new modes of content use and sharing. Some of the amendments made are most welcome, such as allowing for time-shifting, format shifting and expanding fair use.  However, the most contentious aspect of this new law is the lumbering of enforcement responsibility upon Internet service providers. The Telecommunications Carriers’ Forum has described it as ”deeply flawed”.

Notice & Takedown

Section 92B provides that ISPs are not liable for any copyright infringement by content stored on their services, or by their own automated caching activities where they are unaware of the infringement. They do however become liable for copyright infringement where  they fail to, “as soon as possible after becoming aware of the infringing material, delete the material or prevent access to it”. Following any takedown the ISP must also as soon as possible notify the, “user that the material has been deleted or access to it prevented.” This is known as ‘notice and takedown’ roughly the same procedure in place under the Digital Millenium Copyright Act in the USA; except under the DMCA you can issue a ‘put back’ notice and have your content resinstated within 10 to 14 days if the matter is not pressed by the copyright holder to Court.

What this means is that as a ‘copyright holder’ if you provide the ISP with the required information at the risk of becoming liable for infringement themselves the ISPs are going to pull the content. Matthew Bolland of TelstraClear says that, “We don’t check or verify. We take it down.”  This validates the Consumer’s Institute concern that “the procedure is open to malicious abuse by parties who wish to close-down websites or disrupt in some way another person’s business or enjoyment of the use of the internet.”  The proposed offence of filing recklessly erroneous or misleading infringement notices was removed from Act as Christopher Findlayson described it as, “heavy-handed“. Malicious issuance of take down notices can have major financial repercussions for website owners, a stifling effect on creativity and a chilling effect upon freedoms of speech. If anything it is the notice and take-down procedure that is heavy handed. It seems absurd to have no explicit disincentive to use them in this fashion, and no provision requiring users content to be reinstated where they contest the notice - allowing content to be deleted is likely to hinder any further inquiry of the matter.

Section 92B means you are guilty until proven innocent, in an bias forum no less. This contravenes basic principles of natural justice.

A fairer procedure would be a variation on the ’notice and notice’ system as employed in Canada and advocated for by the Consumer’s Institute to prevent non-infringing material from being taken down under the guise of copyright infringement. A notice is passed via the ISP to the user notifying them that they are infringing copyright in some way. The user can then decide to voluntarily pull the content within a reasonable time period or the ISP can block access to it, or alternatively contest the notice and the matter may be adjudicated in court from there. 

Reasonable policy for termination

From 29th February 2009 s 92A of the Copyright Act 1994 will require that, “Internet service provider[s] must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account… of a repeat [copyright] infringer.” The Commerce Select Committee report recommended that new section 92A be deleted as, “the standard terms and conditions of agreements between an Internet service provider and its customers usually allow for the termination of accounts of people using the services for illegal activity.”

 The Telecommunications Carriers Forum are at present coming up with policy on how to comply with the law, although they are unsure whether it will be ready by the 29th February deadline, good luck to them. The requirement of a reasonable termination in appropriate circumstances for repeat infringers  (helpfully defined as;  “a person who repeatedly infringes”) is incredibly imprecise and ambiguous and will no doubt be the subject of future litigation.

How this law was ever passed in it’s current form is a testament to the adage hard cases make bad law.