Artists want 'reasonable solution to bad copyright law'

Matthew Holloway from the Creative Freedom Foundation responds to RIANZ' Campbell Smith's column about copyright law in NZ

Campbell Smith of the Recording Industry Association of New Zealand (RIANZ) wrote a column this week in support of the discredited Section 92A of the Copyright Act.

Nobody should be surprised about this - Mr Smith has made it clear before that he wants the law to require people to be punished by having their internet connection cut off without any due process that would prove wrongdoing. He's on record as saying that it would be completely unacceptable for his organisation to have to prove its case in court.

Section 92A - now thankfully delayed - requires Internet Service Providers (ISPs) to develop a policy for cutting off their customers who are accused of copyright infringement.

Dubbed the "guilt upon accusation" law, it has now seen the Telecommunications Carriers' Forum working on a code of practice for its ISPs to cut off their customers.

Not only aren't the people affected by the code involved in deciding the terms, but most ISPs aren't involved. S92A broadens the scope of an ISP to include most businesses, government departments, libraries, schools, hospitals, and many homes. Nobody is happy about the code of practice, not even Mr Smiths' organisation which regards it as insufficiently draconian.

And draconian is exactly what this law is. The Prime Minister himself used that word to describe S92A a few days before he delayed it. He also said it was not well-drafted and "pretty ropey". He's not a fan of cutting people off without due process it would seem, and neither are most New Zealanders.

As a draft law S92A was deemed unfit for New Zealand and thrown out by its Select Committee following public consultation. S92A was then reinserted by the last government immediately before the bill was passed, against the advice of public servants and avoiding the usual checks that it is consistent with the Bill of Rights.

How can it be fair to cut off someone's internet simply on the basis of accusations and unverified evidence? Mr Smith says that his organisation won't abuse that ability.

This is the same Campbell Smith who told the public and the Select Committee that Bic Runga had to get a second job flipping burgers because of lost profits due to copyright infringement - a 'fact' that she denied almost immediately on her blog.*

According to Mr. Smith, when seeking to cut of people's internet, the RIANZ will produce evidence of the highest possible standard that would convince any court in the land.

That would make their actions very different to those of their parent organisation in the USA (the Recording Industry Association of America, or RIAA), that has a history of suing the wrong people for downloading copyrighted material.

The RIAA has gone after children, people who don't own computers, and in one famous case a Hewlett-Packard printer. This has been a public relations disaster for the recording industry overseas and has caused a public backlash upon the artists that support them. Little wonder that the RIANZ doesn't want to have to prove its case here.

The internet has gone from being a geek toy to being the communications tool of choice for New Zealand people and businesses. Our banks have embraced it and our airline uses it for everything from booking tickets to choosing seats. Most New Zealanders have grown thoroughly used to using the internet to read newspapers, arrange travel, and do business.

Our government is moving more and more towards requiring businesses to use the internet: New Zealand companies can now only file the information they are legally required provide through the internet.

And some employers have to use the internet to send their tax information to the IRD. Cutting of their internet would threaten their survival. Requiring them to buy tracking equipment and to create a policy to cut off their employees' internet access, as S92A does, would increase their business compliance costs yet further.

Campbell Smith would have us believe that Section 92A is all about the rights of artists. This draconian law – more so than the law of any other country – is a necessary sacrifice, he says, the New Zealanders will have to make to protect the rights of his members. But neither his organisation, nor its sister organisation the Australasian Performing Rights Association (APRA), have asked their artists whether they are prepared to promote such a reduction in ordinary New Zealanders' rights.

The Creative Freedom Foundation was set up to represent New Zealand artists. We want to see a reasonable balance between the rights of artists and everyone else, and we certainly do not agree with Mr Smith that cutting off people's internet connections on the basis of an accusation and untested evidence is fair, reasonable, or proportionate.

That is why we applaud the government's decision to delay this law and we urge the government to repeal it altogether. 18,000 people including 9,000 artists have signed our petition against S92A - more artists than RIANZ and APRA combined.

When John Key says that the internet can't be a lawless "wild west" and we agree with him, which is why we need justice for the copyright right holders, justice for the accused, and proper representation for all affected groups in the decision making process. As New Zealand artists we say: unfair copyright law – not in our name.

- MATTHEW HOLLOWAY, CREATIVE FREEDOM FOUNDATION

* Campbell Smith reponds: "I did not tell the public or the Select Committee any such thing. I am on the record submitting to the Commerce Select Committee that 8 of the 11 artists represented by my management company had second jobs. I did not mention Bic Runga in this context (one might assume that the she was included in the company of the other 3 artists who didn't have second jobs) and I did not discuss "flipping burgers". I did not make, and have not made, any public remarks to that effect. Simply because it isnt true.

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