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Current as of 17/09/14 04:20PM NZST

Guilty by accusation copyright protesters paint it black

By Pat Pilcher

A protest campaign against the Copyright Amendment (New Technologies) Act appears to be gaining momentum as protesters, including high profile UK celebrity Stephen Fry, black-out photos on Twitter, Facebook and various other social networking sites.

The Creative Freedom has called Feb 16 to 23 Internet Blackout Week NZ as they seek to protest against the controversial 'Section 92A' due to come into force at the end of February.

Fry, who has thrown his support behind internet Blackout Week, has blacked his out, and now his Twitter site is awash with tweets asking the comedian why.

High profile mapping service provider, Zoomin.co.nz has also weighed in with support for the Blackout campaign by blacking out their maps, placing NZ in a perpetual state of virtual darkness.

Section 92A requires that ISPs must develop a code of conduct to deal with copyright infringement. So far the Telecommunications Carrier Forum (TCF) has proposed a draft code of conduct for its membership (which mostly consists of medium to large ISPs) that uses a four strike system consisting of three warnings and a final disconnection notice to penalise repeat copyright infringers.

To ensure that malicious copyright infringement accusations are kept to a minimum, and that the costs of complying with the new laws are not passed onto internet subscribers, the TCF has sensibly proposed that each infringement notice issued carry a processing charge met by the party lodging the infringement notice.

Since the TCF's draft code of conduct was launched, there has been significant amount of lobbying by all concerned parties. If industry scuttlebutt is to be believed, the various copyright industry organisations have been particularly busy, and are said to be pushing for any codes of conduct required by the pending copyright laws to be toughened up.

Central to this, they argue, is getting processing charges removed for lodging copyright infringement notices and, worryingly, giving copyright holders the ability to decide if any disputes to copyright infringement and disconnection notices are valid - effectively making copyright holders both judge and jury.

If alarm bells are going off in your head, you're not alone. Investigating the validity of any copyright infringement claims is likely to be a resource-intensive and costly undertaking for ISPs.

If the various copyright industry groups are exempted from any processing charges associated with lodging a copyright infringement, internet subscribers will probably suffer as ISPs are forced to pass the costs onto internet users' broadband plans.

Putting it another way, should the copyright lobbyists be successful with this play, you, I, and all other New Zealand internet users could end up having to wear the cost of the music, TV and movie industry's inability to embrace the digital age.

Worse still, these lobbyists are also pushing for copyright holders to judge on the validity of any arguments put forward by accused internet users. Under the original draft code of conduct, a wrongly-accused person could respond to an infringement notice with what's called a Counter Notice, rejecting the accusation, which would then be checked by their ISP, who in turn would judge its validity. Not so with what the copyright lobbyists are proposing.

Under the counter proposal, copyright holders would be able to decide if the Counter Notice is valid and then instruct the ISP accordingly. Although this is only a submission, it shows how far the copyright lobbyists seem willing to trample over traditional notions like democracy and justice. Is it just me or does this smack of having wolves guarding the sheep-pen?

Ironically, New Zealand and France appear to be the only two countries where the copyright lobbyists have made any real headway.

In Australia, most ISPs have rejected similar copyright laws with many stating that their policies are to deal with accusations of copyright infringement on a case by case basis, typically referring serious allegations to the police.

UK politicians have wisely chosen not to support similar laws owing to their complexity, lack of enforceability and potential for political fallout.

Germany has also rejected calls for New Zealand-style copyright legislation with their Secretary of Justice saying "I don't think that [Guilt Upon Accusation] is a fitting model for Germany or even Europe."

Clearly politicians are smarter outside New Zealand.

Disclosure: Pat Pilcher works for Telecom but does not represent the organisation's views.

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