Section 92A of the Copyright Act

25 March 2009
The Government has delayed bringing section 92A of the Copyright Act into force. Section 92A is the provision that requires internet service providers (ISPs) to terminate the accounts of users who repeatedly infringe copyright.

The Government has said that the law will now come into force on 27 March 2009.  The Government says the delay is to allow a workable industry code to be devised.  This article looks at section 92A and how it could affect you and your clients.


What does section 92A really say?

A lot of recent publicity about s92A is misleading.  Despite reports to the contrary, Section 92A does not require an ISP to terminate a user’s account based solely on an accusation of copyright infringement. 

Section 92A states:

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.


What is an ISP?

The Copyright Act has a broad definition of ISP.  Any party that provides any connection for digital online communications, or hosts material on websites or other electronic systems, is an ISP.  Clearly, this definition includes traditional ISPs.  However, many schools, libraries, and law firms also qualify as ISPs. 


Developing a termination policy

ISPs must assess what a reasonable termination policy is.  The ISPs must take into account the rights of the copyright owners as well as the ISPs contractual obligations to the user.  

Some leading copyright rights holders and ISPs have joined together to develop a voluntary ISP copyright code of practice.  The code of practice is still in draft form.  However, given that the government has delayed implementing section 92A to allow a code to be developed, this code may become the industry standard.  ISPs that need to develop a termination policy should review the draft code of practice and see if it will be suitable for them.   If it is not suitable, then they will need to develop their own policy.


 

What is a repeat infringer?

One difficulty is determining when a person is a repeat infringer. It is arguable that a court may have to make a finding of infringement before an ISP can even consider if they are a repeat infringer. Then the issue will become how many infringements are required to make a person a repeat infringer.

The draft code of practice proposes that a repeat infringer is anyone that infringes copyright three times within an 18 month period.  If the code has the backing of copyright owners and leading ISPs then a court may agree that this is a reasonable interpretation of a repeat infringer. 


 

What does “in appropriate circumstances?” mean?

There may be situations where terminating a user’s account would have significant ramifications.  A user may also be an ISP.  If that user’s account is terminated, the accounts of the user’s customers will also be terminated.  There has to be an argument that this would not be an appropriate circumstance for terminating that user’s account.  However, unless some special circumstances exist, then it seems most cases would meet the threshold of being an appropriate circumstance.


 

Will section 92A work?

One real issue with the system is that it may not actually give the relief that copyright owners want.  The majority of illegal file sharing takes place on peer-to-peer networks.  Copyright pirates are sophisticated and there are methods of masking peer-to-peer file sharing that can make it almost impossible to trace what files are being shared.  It seems that section 92A may do little to stop these sophisticated pirates from unlawfully sharing files that are protected by copyright.

Perhaps ISPs in New Zealand will follow the lead of their Irish counterparts.  Ireland’s largest ISP, Eircom, has started blocking its users from peer-to-peer music swapping.  The Irish Recorded Music Association has asked other ISPs to follow suit.  If they do, then Ireland will be the first country to block access to these peer-to-peer file sharing sites.  If that happens perhaps ISPs here may soon find themselves bowing to commercial pressure and putting similar restrictions on users.


 

Will section 92A ever come into force?

Regardless of the protests that section 92A is unfair, the government has made it clear that section 92A will come into force in New Zealand in some form.  John Key has noted this type of provision will be required for a free trade agreement with the USA.  He has also noted Australia and other trading partners are adopting similar provisions under their own copyright legislation.  Therefore, the reality is ISPs need to be prepared to implement a suitable policy.

An edited version of this article was published in LawTalk March 2009.

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