Editorial: Wise move to rethink internet law

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Around the world, law-makers are struggling to come to grips with growing pains associated with the internet's enveloping sweep.

In the United States and Europe, much of the focus is on warding off the blocking of websites and intimidation of internet users by those of authoritarian bent.

Here, matters have taken a different twist with section 92A of the Copyright Amendment (New Technologies) Act. That is concerned not with the freedom of users but the policing of widespread copyright abuse on the internet. This week, it led to a mass internet blackout and a Government decision to put the law on hold.

Section 92A requires internet service providers to implement policies for warning and, ultimately, disconnecting users accused of copyright infringement. Most typically, this involves illegal downloads of music, TV shows and movies.

Both National and Labour supported the legislation when it was passed last year, convinced by the entertainment industry that this was the best way to deal with such piracy. Little thought seems to have been given to the sledgehammer-like nature of the act, most particularly the way providers have to act over unproven accusations of copyright infringement.

Absent is any independent scrutiny of claims made by copyright holders against users. As such, the act strays well outside the normal parameters of the law.

Section 92A was originally removed from the legislation by a parliamentary select committee after opponents argued that other parts of the law covered the termination of user accounts.

Belatedly, however, it was reinserted by Judith Tizard, then the Minister of Arts, Culture and Heritage.

This can only have been a response to copyright holders' demand that the act spelled out utterly specific terms. That, in turn, reflects the tough line being taken on this issue by Hollywood's movie, TV and record industry. It would also recognise the sort of intellectual property protection that the United States would expect in any trade pact.

Nonetheless, section 92A clearly oversteps the mark. It creates human rights issues that cannot be ignored. It also underlines the fact that hard law will not be the best way to meet the many challenges of the internet.

In Europe and the US, politicians concerned to protect freedoms have also been given cause to ponder the potential consequences of heavy-handed legislation.

Providers could be placed in difficult positions if they were to be held liable for aiding internet censorship by countries such as China. A code of conduct setting out minimum corporate standards on freedom is now seen as a more feasible option.

Here, a similar conclusion has, quite correctly, been reached.

While the copyright law is on hold, work is progressing on a voluntary enforcement code, which will require the backing of both the copyright holders and the internet providers.

Logically, this would still place much of the onus for disconnection on the provider, but with the backstop of an independent adjudicator to whom users could appeal.

Cobbling this into a form that can be enshrined in law should be possible given it is the most practical outcome, but it will require both sides to abandon some of their more extreme posturing.

The approach favoured by the entertainment industry has been described as "problematic" by the Prime Minister and dismissed as unworkable by many others.

But John Key also says the Government will not allow the internet to be the "wild west", where copyright holders are not entitled to compensation or recognition of their work.

Piracy means there is already a high degree of lawlessness. A remedy is essential. After a false start, this country finally seems to be on the right track.

- NZ Herald

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