In Feburary 2009, the Copyright (New Technologies) Amendment Act of 2008 goes into affect. This new law contains a very interesting clause regarding Internet piracy.
Section 92A contains this:
Internet service provider must have policy for terminating accounts of repeat infringers
(1) 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.
(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.
This alarms me for so many reasons.
First of all, it’s not as though ISPs were a completely unregulated service in the first place. They all have Acceptable Use Policies and Terms of Service which usually prohibit any illegal activity – those were the terms on which spammers were getting their accounts terminated for many years – back in the day when I could trace them, but I digress.
Secondly, we now have an NZ version of the US DMCA malarky. Upon receiving a copyright infringement notice, ISPs must remove or prevent access to this information. There’s no dialogue with the ‘infringer’, and worst of all, the ‘complainant’ does not need to provide any proof other than a signed statement.
This Act is imposing a great deal of police and regulatory work upon ISPs. I cannot believe that there is any practical way that a webhost or Internet provider can realistically prevent people from doing ‘naughty’ things on the Internet with regards to copyright infringement.
So that leaves us with the same situation that the US is currently enjoying. Copyright holders can send a ‘takedown’ notice to the ISP, demanding that particular works are removed. No proof is required other than a signed statement. It doesn’t appear that forging copyright complaints is an illegal act, so there’s no penalty for bombarding ISPs with phony complaints.
In the US, it is an act of perjury to fake DMCA takedown notices, but no one has ever been prosecuted for doing so, despite many well publicised instances.
The ‘infringer’ is left with the problem of proving themselves innocent, which as you might imagine, is an expensive and time-consuming task, not to mention a bit of a turn-around from the usual ‘innocent before proven guilty’ tradition.
The Government is displaying a staggering level of naivety here. To assume that this is going to solve piracy problems on the Internet is a fantasy that only the Recording Industry Association of NZ could come up with.
Recording Industry Association chief executive Campbell Smith has said it would be “impractical and ridiculous” for copyright owners to prove the guilt of infringers in court before demanding they be cut off from the Internet.
If providing proof is ‘impractical and ridiculous’ then that doesn’t lend their case against individual infringers much credibility.
This Act bestows copyright holders the ability to avoid the courts in their pursuit of punitive damages, but with the full weight of the law behind them. I’m deeply concerned at the thought of policemen showing up to enforce a commercial intellectual property issue, especially when there’s no burden of proof on the copyright holder.
With regards to the ‘open content’ issue which the Digital Content Strategy dances around, adopting the Creative Commons licensing model should prevent this from becoming a problem. The Creative Commons is a well described, widely understood license, and both the copyright holders and any potential distributors should be under no illusions as to what their rights and responsibilities are.
With a bit of luck, people in NZ might be able to convince the Government to change the wording, especially to require proof that there is an infringement taking place. I’m not against copyright holders getting their deserved entitlement, but I am against abuse of the copyright system.
Unfortunately, with the election coming up and a potential change of government in the works, I don’t hold much hope that this will be addressed before February 2009. It will require a high-profile case to get peoples attention for this to happen.
One last thing. It’s also illegal to cache copyright material under this system. So I guess that means there won’t be any NZ Wayback machine coming anytime soon. On a serious note though, this affects people linking to archived data and those who are referencing out-of-circulation publications.