What's next for copyright law?

02 June 2009
Section 92A of the Copyright Act (not yet in force) is the provision that requires internet service providers (ISPs) to terminate the accounts of users who repeatedly infringe copyright.  The government is redrafting the section in light of claims that s92A is unfair and unworkable. However, the problem that the government now faces is deciding what to replace s92A with.

What factors will influence the government?

Prime Minister John Key has confirmed that s92A will come into force in some form as the United States will require it as part of a free trade deal. Last week, Mr Key stressed to United States President Barack Obama that a free trade agreement is important to New Zealand.
However, the fact that the current form of s92A requires ISPs to decide whether a party infringes copyright is of concern.  ISPs, not unreasonably, are unhappy about a provision that requires them to decide whether a person infringes copyright.

At a commercial level, ISPs do not want to cut off their clients when they know they can just move to another ISP.  Further, there will be significant costs to an ISP before it can comply with s92A.


Can we get guidance from overseas?

There are several countries grappling with the issues that our government also faces.

In Australia, the act requires ISPs to terminate the account of a user who repeatedly infringes copyright.  Further, if there is a relevant industry code governing this provision of the Australian Act, then members of that industry must comply with that code.  There are also different categories of infringement.  The ISP’s potential liability (if it does not terminate the user’s account) is determined by the category of infringement.

A proposal that ISPs have to comply with an industry code does have some merit.  The government could even make it mandatory for ISPs to have a code of conduct to deal with users that infringe copyright using the internet.  This could allow the government to water down s92A, while still making it effective and palatable to ISPs, copyright users and copyright owners.  An alternative is for the government to regulate IPSs.  No doubt, this will not be the preferred option of the government or ISPs.

In France, the lower house of parliament has passed a bill that could require ISPs to cut off internet users who infringe copyright for up to a year after three warnings.  The legislation will create a body that polices the internet and can order ISPs to cut off users.  It would not be necessary for a court to find that a user infringes copyright for the ISP to cut off that user.

It is hard to see the government creating an equivalent body in New Zealand.  That approach would go against the government’s clear intention to reduce bureaucracy.  In would also require the government to invest money that, in the current economic environment, it does not have.  Instead, the government will probably require copyright owners to continue to enforce their own rights in the courts.  If a person who infringes copyright is committing a crime, then the police can prosecute that person under the Copyright Act. 

The government in the UK is also considering the issue of ISPs policing the internet.  Creative industries in the UK want ISPs to slow, or stop, the connections of users who repeatedly infringe copyright.  Copyright users say that the will oppose these sanctions.  ISPs in the UK are saying that they do not want to have to police the internet.

The Minister for Creative Industries in the UK recently stated that the UK government is considering a system where and ISP would have to provide offenders with warning letters.  Copyright owners could then follow those warnings with court action.  The minister has indicated that the government in the UK will probably not create a law that will force an ISP to terminate the account of a user who repeatedly infringes copyright.

It seems unlikely that the New Zealand government would take this approach. It would be of concern to the government that this provision would not meet the requirements of copyright protection required in a free trade agreement with the United States.  This is because the proposal in the UK seems to be toothless with no benefit for copyright owners.


What will the government do?

The government may decide that the best option is a mandatory code of conduct.  That code could allow ISPs to the terminate account of a user who repeatedly infringes copyright.  The wording of s92A would not then need to be as strict as the current form. This approach could therefore be a happy middle ground for all the interested parties.  Perhaps ISPs could even take matters into their own hands and create a voluntary body (similar to the Advertising Standards Authority) that can make rulings on allegations of whether a user is infringing copyright.

ISPs, users, and copyright owners all want a scheme under s92A that is palatable to them. Perhaps if they can agree on a suitable approach they may be able to persuade the government not to impose a scheme on them that none of them want.

An edited version of this article was publsihed in the NBR (May 29, 2009)

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