The Internet really did go on strike with as many as 7000 websites going black (including the Greens) and Google receiving 4.5 million signatures on its online petition on one day demonstrating the power of the Internet community. I think it’s the first time the Internet has mobilised to such a degree to protect its free and open nature and did so, successfully. Almost immediately in the Congress, Representative Lamar Smith, the lead SOPA sponsor, killed his SOPA bill and in the Senate, Majority Leader Harry Reid postponed a full vote on PIPA. 1-0 to the Internet.

Whilst it was a victory it’s still too early to see if it will be enduring.

Obviously the Copyright war (or is that a battle in the war for general-purpose computing?) continues and SOPA or PIPA could be resurrected; we could see further moves through the legal system like with Megaupload; or the US’s push could be internationalised through the likes of the Trans Pacific Partnership. I think the values enshrined in Skynet, PIPA and SOPA will continue to be promoted because of corporate vested interests and political collusion. This copyright debate along with general Internet policy is I believe at the forefront of this Century’s political debate and is vitally important to our democracy, freedoms and access to information.

All in all, SOPA and PIPA are victories for the Internet but the momentum will need to continue and grow because like the Hydra, further anti-Internet policies will continue sprouting. Still, take your victories when you can and keep campaigning.

Gareth with some books currently set to enter the public domain but could be affected by the TPP.

New Zealand’s readers and copyright laws could be the losers from US pressure on the Trans Pacific Partnership (TPP).

According to a leaked draft of the proposed intellectual property chapter, the TPP would require countries (such as Canada, Japan and New Zealand) that meet the international copyright term (standard of life of the author plus 50 years) to add an additional 20 years to the term of protection.

It’s just one of numerous facets of the TPP Kiwis should be concerned about.

The extension in the term of copyright would mean no new works would enter the public domain in New Zealand till the 2030s including books by James K. Baxter, Dame Ngaio Marsh, the novel Came a Hot Friday and what’s considered New Zealand’s first gay novel.

Extending the term of copyright would mean Kiwi readers miss out on freely accessing, adapting and quoting at length Kiwi classics until the 2030s not benefiting the authors (who would have died some seventy years prior) but benefitting mostly big media businesses. Given the potential to make those works more readily accessible through new tools like e-readers and digital publishing this would have a negative impact on access to New Zealand culture and history.

Michael Geist points out the extension would also impact a huge number of international authors including Robert Frost, Aldous Huxley, CS Lewis, TS Eliot, John Steinbeck, JRR Tolkein, and Ayn Rand.

New Zealand authors which should enter the public domain after 2013, and which would have an additional 20 years added on under the leaked draft of the TPP include:

• The works of James Courage (d. 1963), including his novels The Young Have Secrets (1954) and A Way of Love (1959) which is considered New Zealand’s first gay novel. These will currently enter the public domain in 2013. Under the leaked draft, would not enter the public domain until 2033.
• The works of Nelle Scanlan (d. 1968), most well-known for the Pencarrow tetralogy: Pencarrow (1932), Tides of Youth (1933), Winds of Heaven (1934), and Kelly Pencarrow (1939). These will currently enter the public domain in 2018. Under the leaked draft, would not enter the public domain until 2038.
• We Will Not Cease (1939), by Archibald Baxter (d. 1970). Will currently enter the public domain in 2020. Under the leaked draft, would not enter the public domain until 2040.
• The works of James K. Baxter (d. 1972), including his first poetry collection Beyond the Palisade (1944) and his plays including Jack Winters Dream and The Band Rotunda. (A complete list of works can be located here: http://www.nzlf.auckland.ac.nz/author/?a_id=8 ). These will currently enter the public domain in 2022. Under the leaked draft, would not enter the public domain until 2042.
• The works of Ronald Hugh Morrieson (d. 1972). Two of his novels, The Scarecrow (1963) and Came a Hot Friday (1964) were later made into movies. These will currently enter the public domain in 2022. Under the leaked draft, would not enter the public domain until 2042.
• Falter Tom and the Water Boy (1957) by Maurice Duggan (d. 1974). This book won the Esther Glen Medal for best children’s book of the year. (A complete list of works by Duggan can be located here: http://www.nzlf.auckland.ac.nz/author/?a_id=36 ). Will currently enter the public domain in 2024. Under the leaked draft, would not enter the public domain until 2044.
• The works of Alfred Hamish Reed (d. 1975), who was the author of approximately 44 books, including The Story of New Zealand (1945), The Gumdigger: the story of Kauri Gum (1948), and From North Cape to Bluff (1961). These will currently enter the public domain in 2025. Under the leaked draft, would not enter the public domain until 2045.
• The works of Alexander Wyclif Reed (d. 1979), who was the author of more than 200 books, including Myths and Legends of Maoriland (1946), which won the Esther Glen Medal for best children’s book of the year, Reeds’ Concise Māori Dictionary (1948), A Dictionary of Māori Place Names (1961), and A Treasury of Māori Folklore (1963). These will currently enter the public domain in 2029. Under the leaked draft, would not enter the public domain until 2049.
• The works of Denis Glover (d. 1980), who is most well known for his poem ‘The Magpies’. These will currently enter the public domain in 2030. Under the leaked draft, would not enter the public domain until 2050.
• The works of Dame Ngaio Marsh (d. 1982), the author of numerous books, monographs and short fiction, but who is most well-known for her 32 detective novels, including A Man Lay Dead (1934), Surfeit of Lampreys (1941), and Clutch of Constables (1968). These will currently enter the public domain in 2032. Under the leaked draft, would not enter the public domain until 2052.

You’ll notice Frogblog has a black colour theme today too. I’ve blogged about why Kiwis should be concerned about the proposed laws over at The Standard.

On January 18 the likes of Google, Wikipedia, and The Creative Freedom Foundation will be either blacking out their sites or posting protest messages to their websites as part of an international campaign. The campaign has already had some success with Congress just yesterday deciding to postpone a vote on SOPA which some interpret as ‘indefinite shelving’ but it still remains and PIPA is still live in the Senate.

It’s a big deal. Imagine a small Kiwi online business blocked from Google searches, running online advertising or even processing VISA transactions or even losing their domain name because of a US copyright allegation that they can’t afford to challenge in a US court.

Like Skynet, this law will be easily circumvented by those in the ‘know’ and won’t even solve the problem. As research from Germany shows, increasing availability of digital content demonstrates one can combat internet piracy without huge costs, stifling innovation and infringing upon basic rights.

Tech Liberty co-founder David Zanetti has blogged that the first few notices issued in New Zealand under the new law do not appear to comply with the legislation and regulations.

Zanetti noted a number of problems with the notices posted to the 3strikes forum such as the description of the type of work alleged to have been infringed, date and time alleged offence occurred and the type of file sharing application used.

It’s concerning that the notices also make the threat of internet suspension despite a select committee ‘compromise’ leaving this up to the Minister of Commerce to decide to enact (he hasn’t yet) oh, and in face of the United Nations asserting that suspension is a breach of human rights.

Orcon spokesperson Quentin Reade told Fairfax NZ News it was “seeking legal clarification on the matter”, and would look at changing the infringement notices they send out if necessary.

This complex and confusing law has so many unanswered questions like these that won’t be resolved till they hit the Copyright Tribunal and possibly even higher courts leaving everyone in limbo.

This law is an absolute mess and won’t even solve the problem. As research from Germany shows, increasing availability of digital content demonstrates one can combat internet piracy without huge costs, a new bureaucracy, and infringing basic rights.

As Cory Doctorow points out “It’s a rare victory for evidence-based policy in a world dominated by shrill assertions of lost jobs and revenue, backed by funny-number “statistics” from industry-commissioned researchers.”

It’s exactly the opposite approach from what New Zealand’s Government has adopted. Our Government didn’t study the problem, didn’t think about encouraging legal alternatives (The Commerce Minister didn’t even know what Netflix was!) and, after US lobbying, passed under urgency the punitive three-strikes ‘Skynet’ law.

Interestingly the report also questions the legality of three-strikes laws after the the UN Special Rapporteur on the right to freedom of expression declared such laws to be a breach of human rights.

The new NZ Government should have a read of the Swiss report, listen to the UN and look at terminating the Skynet law in favour of legal alternatives. As research from Germany shows, increasing availability of digital content shows that one can combat internet piracy without infringing basic rights.

Until recently, this international agreement had been negotiated entirely in secret despite huge concerns about sovereignty and copyright law. However, active campaigning and a great deal of leaked documents has opened up the process somewhat.

More openness has helped create a final version of the agreement that is an improvement on previous drafts, but the process has still been undemocratic and opaque. Trade deals like these must be open to the public and be able to be scrutinised by Parliament.

ACTA was developed by the US and Japan, and countries expected to sign it include Australia, Canada, the EU, South Korea, Mexico, Morocco, Singapore and Switzerland. The Mexican Senate has voted against signing and the European Greens have raised important questions on its compatibility with EU privacy laws.

Back home, there are still many important questions that remain unanswered. The Government hasn’t said anything since April so I’ve written a letter to Foreign Minister Murray McCully asking: who will represent New Zealand at the signing ceremony in Japan on Saturday? Will New Zealand sign the final document immediately or will this be delayed until 1 May 2013? Will the final document be tabled or debated in Parliament? What will be the impacts of signing ACTA on New Zealand? And, lastly, what are the benefits of signing this agreement?

I hope the Minister can respond before the signing ceremony and that Parliament will have a role. The real threat on the horizon however is the looming Trans-Pacific Partnership currently under negotiation. Unlike ACTA, it hasn’t been opened up to wider scrutiny and remains very secretive. Without openness and wider input, there is a great risk the TPP will end up infringing on New Zealanders in a very negative way for little return.

The New York Times describes some of the excitement, reminding me when seven Green MP entered New Zealand’s Parliament in 1999. “These men in their 20s and 30s, who turned up at the imposing former Prussian state parliament building, some wearing hooded sweatshirts, and one a T-shirt of the comic book hero Captain America, were no longer merely madcap campaigners and gadflies. They had become the people’s elected representatives.”

It would be easy to write them off and say it’s just a protest vote by electors disillusioned with traditional parties however they do represent an international movement, with Pirate parties in around 40 countries including New Zealand. (Down under they are struggling and are only 150 members towards the 500 members needed to register.) Up till the 8.9% ‘high score’ in Berlin the party’s main achievement has been the election of two members of the European Parliament from Sweden and a host of municipal councillors.

With more and more of our lives conducted online I think the Pirates represent a growing political niche not represented by older parties who just don’t ‘get’ the Internet, and the impact it has on life in the 21^st century. There is a huge range of internet policy issues that policy-makers find too confusing to engage with, indeed the (commonly perceived) nature of the Internet – open, democratic, equalising – is often seen by Governments as a threat to current business models and the status quo. They fail to see the opportunities that are present in really discussing the issue, which is only going to become more and more important, particularly to young voters.

Are the Pirates a friend or threat for the Greens? We have some key differences but do share some similarities such as copyright and open-source policy, and wanting greater transparency in politics. In 2009, Herbert Rusche, one of the founding members of the German Green Party and the first openly homosexual German MP jumped-ship and joined the Pirate Party. One area where we differ is the Greens’ holistic earth-centred approach seen in the Green Charter. What do Pirate’s say about the biggest threat to the planet, climate change? “Nay, nothing me hearties.”

The Pirates represent essentially a libertarian, post-materialist approach and they are less interested in addressing poverty by sharing wealth than they are in sharing files. It’s no surprise Pirate Party is a solely developed-world phenomenon. Their 8.9% result in Germany was amazing but the Greens received 18%.

A catalyst to their formation and electoral successes was the controversial and polarising Pirate Bay Trial in Europe that resulted in jail sentences and severe fines. In New Zealand we’ve just had three years of debate around Labour’s dire Section 92A copyright law and then National’s Skynet law rushed through under urgency – but even this hasn’t given the impetus for the Pirate Party to go above 150 members (yet).

Why haven’t the Pirate Party been as successful in New Zealand, given our fair, proportional MMP electoral system? As John Naughton, points out it’s clear it would be impossible in the First-Past-the-Post UK. I think in part it is because the Greens have always staunchly opposed internet termination and have had a progressive ICT policy for years. Perhaps for those concerned about Internet issues there’s no need for pirates when game-keepers are already in Parliament? For me personally, I have always put a strong emphasis on trying to reach out and engage with the growing pool of young and tech-conscious voters.

While I’m no Pirate, I’ll keep up the call in Parliament for an open, transparent and free Internet.

The law was controversially passed under urgency with an embarrassing lack of knowledge by MPs who were passing the Bill. Many had no idea what peer-to-peer file-sharing even is with one National member even likening the internet to the evil computer Skynet from the terminator films.

The Green Party was the only party to oppose this law. We did so because we oppose accused account holders needing to prove their innocence, rather than accusers proving guilt that runs counter to the basic principles of our justice system and because the law still contained a clause allowing the Government to bring in internet termination as a remedy for illegal file sharing.

We support Kiwi creatives and think encouraging greater legal content available online would be more effective than this law which makes it cheaper and faster for large, very-profitable corporate media companies to enforce their old distribution models.

Labour has now changed their policy and is supporting a review of the law and scrapping internet termination which I welcome but it is a little late given they voted for the law, and against my amendment to remove termination.

In an email sent out to their membership list the RWR people point out that,

“A new law passed by government which has been nicknamed the skynet law. Can work in our advantage. It’s been written to our advantage that anyone accused is guilty before being convicted.”

The email goes on to say,

“All you have to do is find any foreigner with internet and download a copyrighted item or torrent protocol.”

Their plan seems to be to download copyrighted content — from a company called Resistance Records —from someone else’s connection and then claim that their copyright has been infringed.

Wikipedia describes Resistance Records as “a record label … [which] … produces and sells music by neo-Nazi and white separatist musicians, primarily through its website.”

This goes to further emphasise what a bad law the Copyright infringement law is. Without the usual checks and balances anyone can be accused by pretty much anyone else of infringing copyright and be held liable for fines or disconnection.

Yet under this law it is the accused who has to prove their innocence not the accuser who has to prove their guilt.

I think the law is going to turn out to be a bit of a mess and that’s why I think the Government should have put its energy into encouraging legal alternatives, like Netflix, which have been shown to be more effective at reducing offending internationally, than punitive, confusing & unworkable laws like this.

Hat tip: Reddit

I’ll be speaking at the Auckland rally to explain why the Green Party opposed the law and how making content available online legally is a better way of supporting artists and copyright-holders than this ill-conceived law that first and foremost benefits international corporates.

The handling, debating and implementation of this law has been a massive FAIL for the National Party. Tacked on to the Canterbury earthquake bill under urgency the abuse of this process simply made an already sceptical tech community nervous about the Government’s intent. Thousands tuned into the Parliamentary debate and were embarrassed by the lack of knowledge or preparation of MPs passing the law. The so-called ‘compromise’ around internet termination simply ‘passed the buck’ and kept this breach of human rights on the law books. As of two weeks ago the detection parts of the law have begun being applied, but the Government isn’t offering support to small businesses, libraries or schools who will be affected by this law.

They’ve left it up to Internet NZ’s www.3strikes.net.nz/website to clear up the confusion for them. I spoke to a collection of IT professionals from high schools across NZ last week and they are feeling unprepared and apprehensive about the law, especially considering it’s the account holder – be it a school, company or in parliament’s case the Speaker who is responsible for all infringing on that account.

It’s clear now thanks to Wikileaks cables, successive Governments were under pressure by U.S. politicians (themselves under direct pressure from big corporate entertainment lobbyists) to assist with drafting the law and then passing it as fast as they could.

New Zealand is far behind the rest of the world in terms of our access to new material released on the conventional supply chain, and we often have to wait months, even years before we can get content that is freely available overseas. Digital media is the future, and this law puts this legitimate and legal method of content accessibility at risk, all the while ignoring the people who are doing the lawbreaking.

Like the successful Blackout campaign that halted Labour’s previous botched attempt at online copyright law, the organisers are urging people to wear black at the protests in Auckland, Wellington, Christchurch and Dunedin.

It’s the only conference I’ve been at where I feel comfortable tapping away at my laptop and Blackberry, because everyone else seems to be. I just feel left out not having an iPad.

Interestingly, those who use the internet the most: urban, younger and wealthier Kiwis, are also a pretty accurate description of many Green Party voters.

There are a huge number on online issues: the digital divide, terminating internet access be it in Tunisia or Taupo, net neutrality, New Zealand’s broadband rollout, etc., but in this blog I’d like to touch on a few discussed yesterday: digital citizenship, the recent copyright changes, and ‘fair use.’

A question I’d like to ask is; are we giving our students appropriate training as digital citizens? More and more of the world is conducted online and students face many challenges from navigating the massive amounts of information online as well as the biggest threat for many, cyber-bullying. It seems there is a huge gulf in what’s offered between different schools, not just between higher and lower decile schools, but even between similar decile schools.

A big topic of discussion at Nethui is the new controversial file-sharing law passed under urgency, which the Green Party opposed. Like politics, there is a broad spectrum of views on copyright, some advocating it be ditched entirely, to those who want to see stiffer penalties and an extension of copyright. Likewise there’s a vigorous debate around whether internet access is a human right or not.

I’m somewhere in the middle. I want to see Kiwi artists be able to make a living off their creativity but I also think copyright is an economic monopoly on reproduction, not a property right, where sharing is likened to stealing, something this video humorously demonstrates. The fact is, the internet is the world’s greatest copying machine, and copyright laws need to be updated to reflect this. I think our priority shouldn’t be on ‘sticks’ like internet termination as a remedy for illegal file-sharing, but ‘carrots’ like increasing availability of digital content that recent research from Germany shows is more effective.

One problem faced in New Zealand is that our copyright legislation, written effectively in a pre-internet environment, is very specific on, for example, how much of a book you can copy, but not for online content. I think we put the cart before the horse making online copyright enforcement cheaper and faster, benefitting traditional media business models, before updating copyright legislation for the digital age.

Unlike the U.S. or Australia we have very little protection for ‘fair use’ of a work for purposes of parody or satire. Remember the Telecon ad parodying Telecoms practises, or the Should-A website parodying the poorly worded Section 59 referendum question? These were both removed under copyright arguments because we don’t have fair use protections.

I received a great deal of support at Nethui and online when I announced I am currently working on drafting a Members’ Bill to amend the Copyright Act to include parody and satire as fair use protections. Look forward to seeing this soon.

Labour says:

[the Act]…allows the Government by Order in Council to terminate people’s Internet access for up to 6 months. Labour opposed that part of the law when it was being discussed. National appears to be taking a different position at home from its position overseas.

If only that were true. Labour voted for National’s legislation. But worse, they actually voted against my amendment to remove internet termination from the Bill.

Labour’s tech spokesperson Claire Curran argued previously this was OK because a ‘compromise’ was reached in Select Committee to leave enacting termination up to the Minister of Commerce.

Ms Street received a number of Tweets pointing out her inconsistency, and she responded:

It would have been great to get Labour’s support for my amendment. But given that they voted for internet termination, I do think it is a bit rich for them to critisise the Government  for taking ‘a different position at home from its position overseas’. Labour should agree on its own position?

Now the UN Special Rapporteur on the right to freedom of expression has declared such laws to be a breach of human rights.

The report says: “The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.”

As recent research from Germany shows, Increasing availability of digital content shows that one can combat internet piracy without infringing basic rights, and was sadly lacking in this or the last Government’s approach to illegal file-sharing.

I think it is a little rich, Labour, who voted in favour of this Bill are now calling for a complete review of our copyright laws after this report.

To be clear, the Minister of Communications still hasn’t acted the termination clause but this report should, along with all the other reasons give him a clear steer to not enact this provision.

I call on the Minister to now ‘terminate’ potential internet termination from our law books.

In this podcast, Green Party ICT Spokesperson Gareth Hughes talks about the new law – what it means, why non-nerds should be worried about it too, and what can be done from here.

If you’re reading this on Friday 27 May, you’ve got the rest of today to make a submission – click here for a form submission to adapt.

If you missed Gareth’s virtual public meeting on this issue, you can download the full audio here, or follow NZGreens on twitter for a link to the video when it’s posted.

Showing the power of social media, this week’s track is Shuffling Joe, by Dub Asylum. Crowd-sourced from twitter! Thanks Dub Asylum. It’s file sharing in action!

Click the arrow thing to play…

Click to play

If you’re having problems with our Flash player, try this alternative site. This podcast series is now available on iTunes.

It was great to use web streaming technology to host a meeting that meant people from across the country could tune in, but most importantly meant people could make comments, discuss and ask questions online in real time.

More than 500 people tuned in to the meeting and there was a huge volume of questions and comments. It meant that, unfortunately, not everyone’s could be read out live, but it was fantastic to see the online parallel debate happening while I discussed the law with blogger David Farrar, InternetNZ’s Vikram Kumar, and Bronwyn Holloway-Smith from The Creative Freedom Foundation.

We discussed what the law will mean for internet users, families, businesses and artists; the debate and process of passing the law; whether the internet is a human right and a whole host of other issues. One of key points at the end was the need for people to send the Government a clear message on what needs to change. The Government is currently consulting on the regulations and I’ve produced a submission guide so you can send one in but do it quick because the deadline is Friday, 27 May. Check out our submission guide here.

We’ve uploaded the audio from the meeting, as well as the video – what do you think?

It was also a fun debate, with some hilarious gaffes made by National MPs who got their inter-webs mixed up with their Skynets that have been immortalised in online parodies. There was a parallel debate occurring online – on message boards, Twitter and Facebook – that I was also participating in that showed the power of the internet to facilitate communication and broaden political engagement.

The Green Party were the only party to oppose the legislation, and has always opposed and continues to oppose, internet account suspension as a punishment for infringing file sharing. I outline the Green Party’s position in this speech.

In a nutshell though, the Green Party thinks the current Bill is significantly better than its predecessor and is glad that through a select committee compromise, termination will not be enacted immediately except through a Ministerial decision. However, it is likely just a delay and we cannot support it to be written into law.

We believe account suspension is a bad precedent, is disproportionate to the problem and will not solve the problem. We support Kiwi copyright holders and think the use of fines rather than Internet suspension is a more appropriate and proportionate sanction for file sharing. Access to the Internet has become a necessity in an era when more and more public and private services are only provided online.

Labour have taken an interesting approach to this legislation. In my committee stage speech below, I go a little in-depth into Labour’s so-called ‘compromise’. Labour try to explain why they supported it in their own blog and state that they are “fundamentally opposed to internet disconnection”, yet still they voted to support the bill that contains this clause and voted against my amendment to remove it. I question how fundamental their objection is.

I wrapped up the final reading of the Bill by arguing for a whole revisit of copyright as an issue in the modern world and by thanking the Twits, Facebookers and Bloggers for engaging in the debate.

So, what now? It seems that this debate has prompted the revival of the Blackout campaign and the next questions we need answers to are: what threshold will the Minister use; will a public consultation be run to enact account suspension; and will Labour pledge to remove the clause if they become Government?

The Bill essentially sets out a three-strike “notice and notice” system for copyright infringers.

Internet account suspension as a remedy for infringing file sharing was the big issue that many submitted on. Was suspension of a person’s internet account for copyright infringement a needed deterrent tool that would unlikely ever be used by copyright holders or an ineffective, and, as David Farrar put it “…unproportional response and a bad precedent”?

In the end a compromise was reached whereby it was drafted into the law as a remedy but only available if the Minister enacts the termination clause.

I like compromise and the idea of parties working together towards a solution, so was initially keen on it, but in the end after really searching within myself I came to the conclusion that there was no way Parliament should be drafting into law something disproportionate to the problem it causes, that will not stop the pirating of copyrighted material, and could take away people’s access to the internet, which in today’s wired world I believe is akin to a human right.

In my Minority Report I pointed out:

The Green Party asserts that there is a danger in heavy-handed regulation for a problem that may only be a temporary result of new technologies upsetting traditional business models. The use of fines rather than Internet suspension is a more appropriate sanction for file sharing, and the punishments should be proportionate to the crime.

Citizens are not denied the right to use their telephones because they happened to be used in the commission of a crime, and this legislation should not set any precedent. Access to the Internet has become a necessity in an era when more and more public and private services are only provided online.

While supporting the bill in principle, the Green Party opposes the retention of termination in the legislation.

As the Creative Freedom Foundation have pointed out “This isn’t a solution, and in fact it’s a massive problem because there are no government statistics about infringing internet downloading in New Zealand so it would have to be based on lobbying, and Internet Termination could be enabled in cabinet, without a vote in parliament.”

They say that section 92a of the Copyright Act would undermine the “incredible social and economic benefits” of the internet and was disproportionate to the problem it aimed to address.

Oh yes indeed and more.  The law as drafted requires ISPs to act as internet police and the results – cutting off internet connections on an accusation-could create havoc for fledgling NZ businesses at a very risky time.  Notwithstanding the principle behind the issue, I have great concerns that these kinds of provisions could be used against ISP’s and internet focused businesses by competitors trying to get a market advantage by cutting off the competition.   If an accusation is all that is needed it will be used by the unscrupulous in this way.

We have proposed the solution AGAIN.

If ACT and Peter Dunne have u-turned and decided they now oppose the original bill and want a better outcome great, they should support our change.  If only they had done so LAST year we would not be having to have this foolish fight all over again.  So much for common sense.

We need to return to what the select committee decided to do. That is to amend section 92A to set out a ‘notice and notice’ provision for ISP’s rather than the ‘notice and takedown’ in the current law. That is what we proposed and won in the committee. (Labour took it out. It would be great if they could admit they got it wrong.)

Nandor, in his third reading speech described the notice and notice provisions like this:

As I have said, it would work like this: if someone makes a claim to an Internet service provider that some material that it hosts breaches copyright, the Internet service provider will notify the alleged infringer.

In most cases the person would either admit guilt or just fail to respond, and in those cases the Internet service provider would simply remove or prevent access to that material.

However, a small proportion of alleged infringers would contest the claim for genuine — if debatable — reasons, and the matter could then be adjudicated in court.

We believe that this approach would provide fair protection for copyright holders while also protecting legitimate use.

It would at least allow claims to be contested in an impartial forum.
We believe that the current notice and take-down provisions do not provide any protection for fair use.

The select committee believed that approach to be the most fair and the greatest extent of the obligation on an ISP.

This is what the select committee recommended:

92C Internet service provider liability for storing infringing
material
(1) This section applies if—
(a) an Internet service provider stores material provided by a user of the service; and
(b) the material infringes copyright in a work (other than as a result of any modification by the Internet service provider).
(2) The Internet service provider does not infringe copyright in the work by storing the material unless—
(a) the Internet service provider—
(i) knows or has reason to believe that the material infringes copyright in the work; and
(ii) does not, as soon as possible after becoming aware of the infringing material, delete the material or prevent access to it; or
(b) the user of the service who provided the material is acting on behalf of, or at the direction of, the Internet service provider.

That is the absolute most that ISP should be required to do. The proviosn requires knowledge of an infringement, not an accusation of one. If some company believes their copyright has been infringed they should take appropriate legal action against the infringer not use ISPs as their cheap bully boy.

Scoop’s full coverage of the s92(a) blackout can be found here.