Back to the present: Section 92A returns

Copyright infringers face being unplugged under the revised Section 92A draft.

After much controversy and gnashing of teeth, Section 92A is back.

Originally drafted to be part of the Copyright (New Technologies) Amendment Act 2008, which came into force on 31 October 2008, Section 92A was not implemented.

The original Act would have required ISPs to terminated the internet accounts of repeat copyright infringers.

Concerns from the general public around what was seen as a lack of transparency and fairness plus concerns by ISPs over compliance costs and legal issues led to delays.

Ultimately the inability of copyright holders and ISPs to reach an agreement on a voluntary code of conduct resulted in Section 92A being delayed until an improved version could be drafted.

Now a re-worked draft of a new Section 92A has surfaced (A working draft paper on the act can be downloaded from http://www.med.govt.nz/upload/68683/proposal-document.pdf) which has so far received tentative nods by many of the detractors of the previous version.

According to Bronwyn Holloway-Smith of the Creative Freedom Foundation "It's wonderful that Hon. Simon Power, the Working Group, and MED are ensuring due process around copyright infringement allegations.

This proposal is certainly a considerable improvement on its predecessor, and it's great to see an independent tribunal and targeted fines as part of the process."

How it works

The revised version of Section 92A now incorporates an independent body, the Copyright Tribunal, which will act to ensure that the infringement allegation process is handled fairly.

Like the previous version of Section 92A, the new iteration uses three stages to handle copyright infringement allegations.

The first stage of a copyright Infringement allegation see's the copyright holder sending a first infringement notice to the infringers ISP. This is then forwarded by the ISP to the subscriber. The copyright holder can also then send (via the ISP) a cease and desist notice.

If within 9 months there is another allegation of more copyright infringement by the same internet subscriber, the second phase kicks in and the copyright holder can then apply to the Copyright Tribunal for an order requiring the subscribers ISP to provide them the name and contact details of the alleged infringer.

Armed with these details, the copyright holder can then register an infringement complaint with the Copyright Tribunal, which will check that the infringement complaint is fair and legally valid.

In the third and final phase, the copyright holder can then notify the subscriber that an allegation of repeat copyright infringement has been lodged against them.

The subscriber then can respond to the allegation and if they want opt for mediation. The Copyright Tribunal can seek damages from the infringer and can order the ISP to terminate the subscriber's internet connection.

Good bits

The new and improved Section 92A may only be in its draft stages but it represents a significant improvement over the original Act. The introduction of an independent body to arbitrate and ensure that complaints are fairly handed means both the rights of the accused and accuser are represented.

The new draft act also puts more onus on copyright holders to prove that an infringement has taken place and as such is also likely to cost more for copyright holders to police, potentially limiting the amount of bogus or rickety copyright infringement complaints.

Having the option to impose fines rather than disconnecting accused infringers also makes the new draft of Section 92A somewhat less draconian.

Not-so-good bits

The new draft of Section 92A is however still a draft and as such it isn't perfect and is likely to be subject to intense scrutiny to fix any gaps before it is passed into law. As it stands there are still several areas of ambiguity that are likely to be debated.

Under the proposed act, organisations and companies with networked PCs can be defined as ISPs and are exempt from Section 92A (employees however are still liable).

Whilst this is a good thing in that it minimises the impact of Section 92A on businesses, the revised act is still pretty vague on what sort of organisation or business is able to be considered an ISP which leaves a lot open to debate and could potentially be exploited as a loophole.

Equally worrying is a lack of any provision for dealing with false accusations.

Given the sheer scope for malicious complaints under the proposed Act, robust counterbalances in the form of penalties for false complaints will go a long way towards ensuring only legit complaints are processed.

ISPs are also likely to still incur additional overheads complying with Section 92A. Should these prove to be too onerous, they could be passed onto internet subscribers.

Retaining the disconnection penalty is however a more serious concern. With broadband connections set to become the land line phone replacement, disconnecting repeat copyright offenders could potentially see them being unable to make emergency calls over their landline.

Ensuring internet-based landline phones continue to work for emergency calls even if the subscriber has been otherwise disconnected is likely to be a major for ISPs and telco's going forward.

Last but by no means least, the new legislation could ultimately be unworkable owing to the use of dynamic IP addresses by most New Zealand ISPs.

With dynamic IP addresses, the address used by infringers will change at regular intervals or when the subscribers broadband router is re-started.

Constantly changing IP addresses could make it extremely difficult to prove that copyright infringement has been committed by the same person multiple times.

Carrot and the stick

While the new draft legislation represents a good start and is a vast improvement over the previous incarnation, it is still a stick and a carrot is distinctly lacking. Ultimately the focus needs to be on providing real and affordable legitimate online access to downloadable music, movies and TV shows as well as on having stringent penalties for copyright theft to reduce piracy.


(Pat Pilcher is an employee of Telecom, and his views are not those of the organisation.)