Common sense on copyright

Barack Obama got it right when he said, “A good compromise, a good piece of legislation is like a good sentence or a good piece of music. Everybody can recognise it. They say, ‘Huh. It works. It makes sense.’” The converse is true too, and it’s abundantly clear that s92A of the Copyright Act 1994 makes little sense at all. The Government seemed to recognise this when it canned implementation in favour of a review. But those of us hoping for common sense to prevail look likely to be disappointed. The Ministry of Economic Development (MED) review looks as if it could become an elaborate, doomed attempt to make a silk purse out of a sow’s ear. Make no mistake: the TCF firmly believes copyright theft is a bad thing. The creative sector’s intellectual property rights must be protected. Where we, consumers and ICT sector organisations, are united is in our rejection of the current s92A as the best way of doing so. ISPs should not be forced to interpret the law, then police it using the blunt instrument of terminating repeat infringers’ accounts. Why, then, are we concerned about this review? The MED’s working party will consult stakeholders for three weeks in July, and a new bill will be drafted a few months later. This apparent once-over-lightly exercise seems unlikely to deliver what’s needed. The working party comprises intellectual property and Internet law experts – no ISP or Internet user representatives. Even more disappointing is that the brief seems to be to find ways of tweaking s92A rather than a more fundamental review exploring more cost-effective and workable solutions to copyright theft. There’s no evidence of any substantial rethinking. We have a review, but I fear we also have a pre-judgement. The TCF is not being obstructive here. Although we strenuously objected to many aspects of s92A – including its inconsistency with s92C – we nevertheless committed to developing a code of practice to help ISPs implement it. We released a draft code in February, and developed it further in response to rights holder and public feedback. Not until the Government suspended the section’s March implementation did that work halt.  The draft code certainly didn’t represent the TCF’s view on the best way of dealing with copyright infringement. It was a response to the law as it was, and nothing has changed our original view that the new law is fundamentally flawed. While developing the code, we ran public workshops, called for submissions, and discussed the issues with rights holder groups. Most written submissions opposed s92A’s termination requirements. The writers, like the TCF, believed that ISPs shouldn’t have to determine guilt on the basis of rights holder allegations. To my mind, relying on ISPs to do so is a clear case of the cure being worse than the disease. The TCF believes more strongly than ever that the s92A approach is wrong. Account termination is too drastic and unjust a response to online copyright theft – or rather, allegations of it – especially at a time when Internet connectivity is almost as necessary as power and water.  The Act too broadly defines ISPs as anyone with a shared Internet connection or website. How can termination ever be a workable solution for everyone this covers? And how can they be expected to resolve disputes between rights holders and users when, as one judge has said, 30% of copyright litigation fails either to prove copyright ownership or show it’s covered by New Zealand law? The TCF believes education is far more cost effective than enforcement. The threat of termination is unlikely to deter hard-line, techno-savvy infringers. But UK research shows nearly three-three quarters of music infringers stop illicit downloading when they get an infringement notice. We believe the Government should do away with termination and absolve ISPs from unwanted and unworkable legal responsibility. The working party’s review and the resulting law seem set to create more problems than they solve. And that makes no sense at all.