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.

Metiria gave Labour a serve here. Stephen Fry gives the law a serve here. Meanwhile, laugh at this while you can, and contact your MP about repealing all the repugnant clauses inserted into the Copyright Act last year, starting with section 92A.

We considered a variety of measures including delaying the enactment of the clause, however it is better to state the appropriate mechanism for resolving the issue.  This Bill therefore amends section 92A to include the following clause:

(3) A policy as required by subsection (1) must be in accordance with guidelines developed by industry groupings representing the interests of telecommunications carriers and rights holders and agreed by the responsible Minister.

The wider issue of the future of copyright law in a digital age is complex and fast changing. In order for the Section 92A to be effective, a workable code of practice between the rights holders and the internet service providers must be achieved.

This amendment is in keeping with the objective of the Act which is to ensure a robust intellectual property rights system for the continuing growth of New Zealand’s creative and innovative sectors.

The Greens did not deny leave, why would we as the bill wont make the situation any worse?  But it certainly wouldn’t make any difference to the problem – that is that if Cabinet doesn’t agree on Monday to issue an order in council to prevent section 92A from coming into force, then as of 28 February ISP will have to comply with the provision.

I am amazed the Labour could take this action since Labour put the provision into law and despite the continued objections from ISP’s decided to proceed with it.  Nandor, who was our ICT spokesperson at the time, fought the provision all the way, but Labour never listened – and neither did Peter Dunne, or Rodney Hide.

Funny how they all now think it there is a problem and all want to be the great saviours of the ISPs as they trip over themselves to champion the cause.

I don’t care who fixes it or why – JUST DO IT and do it fast!