The New Zealand government has taken a novel approach to try to fix what seems to be a nagging problem for governments in today’s connected world: peer-to-peer file-sharing. On Oct. 3, Associate Commerce Minister Judith Tizard announced that recent copyright amendments will come into force, including a provision (92A) that requires internet service providers to “reasonably implement, a policy for termination of accounts of repeat copyright infringers in appropriate circumstances.”
The Recording Industry Association of New Zealand has endorsed such measures, indicating that the provision is a “sensible, proportionate way of addressing the issue and will help to create the right environment for the creation and use of digital content.”
Considering the consumer interests at stake, this provision also received major backlash. At geekzone.co.nz, the pitfalls of such a provision are outlined. They fall into two main camps: (1) false accusations, and (2) disproportionate impacts.
Procedural Protections
With regards to first point, the blog post quotes Colin Jackson, who fears for the procedural rights of the accused infringers, stating that “ISPs have to cut people off the Internet if a music company accuses them of copyright infringement. There’s no trial, no proof, and no accountability on the record companies to get it right.” Further, Geekzone quotes internet advocacy group InternetNZ, who fears that the uncertainty of the provision “leaves the door wide open to those who seek disconnection of an alleged repeat infringer based on flimsy evidence, or worse, allegations alone.”
With regards to this criticism, the devil is seemingly in the details. Since the legislation was not explicit about any procedural protections for the accused infringer, the fear that such a provision can be abused is indeed a real threat. However, such criticisms can be allayed if a procedure for notice and reply and impartial determination of copyright infringement is put in place. Of course, whether this will be done remains to be seen as such additional procedures undoubtedly add expense to the scheme.
Disproportionate Impacts
With regards to the second point, Geekzone.co.nz notes that cutting off internet access may be too blunt an instrument to stem copyright infringement. That is, individuals will be precluded from using the internet for a host of legal online activities (such as email, remote computing, or internet telephony) that they should otherwise still be able to partake in because such activities do not have to do with copyright infringement.
Seemingly, removal of such users may have negative impacts on the information economy. If individuals are precluded from accessing the internet, and if this cutting off happens in great numbers, many individuals will be precluded from shopping online, booking vacations online, or viewing ads online. Indeed, a side effect of this provision may be a slowing of New Zealand’s internet economy.
On the other hand, it may also be the case that the strong disincentive of losing internet access just might do the trick to stop New Zealand citizens from participating in P2P file-sharing.
Moving Forward
The bill is slated to come into force on February 28, 2009. In the meantime, the ISPs and the copyright holders are to work out how this provision will actually work. No doubt, New Zealanders (and others around the world including Canadians) will be curious to see what the eventual process will be, and further, whether cutting off internet access will have any adverse side effects. Will this be hailed as a novel way of addressing copyright infringement via P2P file-sharing, or will the effects of limited access to the internet for New Zealanders end up hindering the economy more than it benefits? Only time will tell.
4 Responses
The section 92A provision is indeed a very strong measure to curb the problem of online copyright infringement. In light of its potential disproportionate impact on infringers, Julian is quite right to point out the potential negative economic ramifications to be weighed when considering the economic reasons for implementing the provision as put forth by Judith Tizard. In addition, not only can it be argued that punishments will prevent activities that are unrelated to the unlawful acts, but it can also be said that they will impair an individual’s freedom to such an extent so as to be considered egregious on the part of the government.
The proposed punishment of section 92A is essentially the imposition of a virtual jail term on internet users and is substantively different from the standard punishment of fines that are used to compensate rights holders. Personal access to the internet is, for all practical purposes, essential to many in the modern world so that it is not difficult to envision the livelihood of some people suffering tremendously if this is taken away from them. No longer can it be considered just a minor hindrance to lose internet access after one has become reliant on it in so many ways. To cause such a major disruption of a citizen’s life should be warranted only for more serious crimes. If it is to be accepted that the provision leads to a disproportionate punishment at this time, as the information age progresses and access to the internet becomes even more entrenched in our daily activities, the degree to which this punishment is disproportionate will only increase.
Interesting approach to dealing with P2P file-sharing. Since the Canadian courts have not been willing to order ISPs to turn over the names of uploaders, maybe the Canadian industry will consider lobbying for the New Zealand approach. With the election now over, and a campaign promise that the copyright reform bill will be back on the table, it will be interesting to see what approach our government takes – hopefully something more procedurally fair than the approach adopted in New Zealand.
I think it’s useful to remember that under s.4(2), “Internet Service Provider” has a broader meaning than just the company that you get your internet connection from:
Internet service provider means a person who does either or both of the following things:
(a) offers the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing:
(b) hosts material on websites or other electronic retrieval systems that can be accessed by a user
When we shift the policy debate to look at accounts with ISPs that fall into the (b) category, like YouTube or a website host, I think most people would agree that the 92A termination remedy looks more reasonable. If a user is repeatedly uploading infringing material to YouTube, it makes sense to take away their youtube account. Here the impact of the remedy is more proportionate to the infringement as termination of that account will generally have less impact on unrelated activities.
This distinction between definition (a) and (b) ISPs, or more generally, the proportionality of the impact in relation to the infringing activities might help inform what it means to “reasonably implement a policy that provides for termination, in appropriate circumstances” in these different circumstances.
It’s important to remember that these types of measures are only for cases of “repeat infringers”. Most ISPs that have implemented such policies do so under a “three-strike” model, such as the case of the French bill that was passed last week. After a first violation, a warning email is sent to the subscriber. If the infringing activities persist, a physical letter is sent to the subscriber’s home address. It is only after both these warnings are ignored that access is disabled. A similar model is currently being worked out privately between the music and ISP industries in the UK.
Jonathan notes that Canada should adopt a more “procedurally fair” model to deal with online infringements than these “three-strike” or “repeat infringer” systems in any future copyright amendments. However, looking at the last draft of Bill C-61, the current liability exemptions for ISPs reads:
s.31.1(1): “A person who, in providing services related to the operation of the Internet or another digital network, provides any means for the telecommunication or the reproduction of a work or other subject-matter through the Internet or that other network does not, solely by reason of providing those means, infringe copyright in that work or other subject-matter.”
So while the language of Bill C-61 would clearly cover such entities as traditional ISPs and websites like YouTube (which has also implemented policies to deal with repeat infringers), the exception would also extend to anyone who “provides any means for the telecommunication or the reproduction of a work or other subject-matter through the Internet”. This could potentially include clearly illegal activities such as operating a P2P network like Napster or Kazaa, or operating a BitTorrent site. In my opinion, requiring online service providers to implement reasonable copyright compliance policies is an excellent way to legally distinguish legitimate and innovative online enterprises (like ISPs and user-generated content sites) from more nefarious online actors who do little to discourage (and even encourage) massive copyright violations.
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