Protesters created an internet 'black out' earlier this week to
demonstrate against the proposed law. They replaced their websites
with a black-out
page directing users to an information page about the law.
Amendments planned for New Zealand's Copyright Act by a Labour
Party government that has since been replaced included the
insertion of controversial sections 92A and 92C.
Section 92A says:
"A Internet service provider
must have policy for terminating accounts of repeat infringers“(1)
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.
(2) In subsection (1), repeat infringer means a person who
repeatedly infringes the copyright in a work by using 1 or more of
the Internet services of the Internet service provider to do a
restricted act without the consent of the copyright owner."
Section 92C says:
"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.
(3) A court, in determining whether, for the purposes of subsection
(2), an Internet service provider knows or has reason to believe
that material infringes copyright in a work, must take account of
all relevant matters, including whether the Internet service
provider has received a notice of infringement in relation to the
infringement.
(4) An Internet service provider who deletes a user’s material or
prevents access to it because the Internet service provider knows
or has reason to believe that it infringes copyright in a work
must, as soon as possible, give notice to the user that the
material has been deleted or access to it prevented.
(5) Nothing in this section limits the right of the copyright owner
to injunctive relief in relation to a user’s infringement or any
infringement by the Internet service provider.
Opponents of the clauses say that these clauses make it possible
for copyright holders to have internet users cut off merely by
accusing them of copyright infringements a number of times.
"[Section 92] assumes 'Guilt Upon Accusation' – cutting off
internet connections and websites based on accusations of copyright
infringement, without evidence or even a trial," said a statement
from protest body Creative Freedom."
Director Bronwyn Holloway-Smith said: "The result of this law
could be that one rogue employee or even one virus infected
computer could bring down a whole organisation's internet and it's
highly likely that schools, businesses, hospitals, and phone
services will be harmed by this".
Many countries, including the UK, are considering whether to
introduce 'three strikes and you're out' policies for people found
to have engaged in online copyright infringement. New Zealand's
plans were unusual because, according to opponents, there was no
burden of proof required to disconnect users.
In the UK the Government has planned a new regime whereby
internet service providers (ISPs) will have to contact repeat
offenders and warn them of the illegality of their behaviour.
Details of the activity can then be passed on to copyright
holders.
According to the Government's Digital Britain report, though,
the details can only be passed to rights holders under a court
order and it is for rights holders to pursue action against alleged
infringers. No disconnection obligation falls on ISPs.
New Zealand's controversial clauses were removed by a
parliamentary committee last year, but reintroduced by government
ministers.
Prime Minister John Key has now said, though, that it will hold
back on passing the clause until 27th March. He said that the
clause could be "problematic" and that it might be removed again,
according to The New Zealand Herald.
Editor's note, 26/02/2009: When this story
first appeared we had quoted only parts of the legislation. A
reader pointed out that this misrepresented the effect of the law.
This story now features the relevant clauses in full. We also
changed the first paragraph of this story to make clear that it is
opponents of the law who claim that users' internet
connections can be cut off on the basis of accusations
alone.
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