Chris Barton: Copyright not about criminalising kids

Campbell Smith, chief executive of the Recording Industry Association of New Zealand (Rianz), is disingenuous when he says: "Internet service providers are in a unique position to help us protect creative content online."

What he really means is: "We want internet providers to be our vigilantes - cop, judge, jury and executioner - to hunt down illegal music downloaders and cut off their internet."

Isn't that job of the police and the courts? And what about due process - don't people accused of wrongdoing deserve a fair hearing?

Not according to Smith and others who are pushing for one of the most stupid, unjust pieces of legislation this country has ever seen.

Thankfully, even though it voted for Section 92a of the Copyright (New Technologies) Amendment Act when it was introduced by the Labour government late last year, National has decided to take a deep breath and think again. The section has been put into abeyance until March 27.

Many are hoping it will be repealed, but it's possible it could just sit forever in a kind of legal purgatory as the law that was never enacted - a reminder to politicians the world over of how not to make legislation.

The politicians who voted for this law should hang their heads in shame. Rejected by the select committee process, Section 92a was re-inserted at the last minute by the real villain in this sorry affair, Judith Tizard, the then, and now ousted, Associate Minister of Commerce.

Did anyone point out her subterfuge? No, they blithely voted the section into a law that would come into effect in late February.

You have to wonder whether our politicians have really thought at all about what they are trying to achieve in this copyright law.

Do they really want to pass a law that makes children criminals and stifles creativity? That's not what copyright is all about. It's supposed to give people the independent means to be a creator, to provide a structure of incentives for artists.

But already, much of the act passed into law - including its draconian Section 92c, which forces internet providers to take down material on web sites on the say-so of someone claiming a breach of copyright - does just the opposite.

Section 92c is the sort of law that stops a mother putting a video on You Tube of her baby dancing to Prince's Let's Go Crazy because the copyright holder doesn't authorise it.

The kind of law that stifles debate by preventing spoofs of political campaigns.

It's also a law that stops a multi-media savvy teenager remixing original video, music and graphics to create something new to share with friends on Facebook, because it might breach copyright in the original work.

The lawmakers say they are trying to stop abuses of copyright but have got so narrowly focused that they have become copyright abusers themselves - distorting the fabric of copyright to such an extent that they limit creativity and criminalise our kids.

Section 92a is worse - a law, that if it's passed, can't help but create arbitrary and unfair results.

As Smith and others point out, it's relatively easy to identify who is uploading or downloading what by the IP (internet protocol) addresses of users of peer-to-peer networks. But what he doesn't say is that it's also relatively easy to spoof IP addresses and disguise who's actually online.

So when internet providers are told by Smith and others to cut off someone downloading, they could end up, quite correctly, looking at the packets which have spoof IP addresses and consequently shutting off the spoof.

In the process, innocent people would be thrown off the network by guilty downloaders evading detection.

If Smith and Rianz want to hunt down our kids until the end of time and punish them, let them do their own dirty work. And follow standard due process to evaluate what has been done and prosecute offenders.

Enough ammunition exists in our laws already for them to do this. Enlisting internet providers, via Section 92a, is nothing but a convenient shortcut to bypass the protections and standards of evidence available in a court.

But what our politicians should really be looking at is whether passing laws like this is an appropriate means of promoting copyright. When there is such widespread thumbing of the nose at copyright via the internet, isn't it perhaps time to ask whether there may be another way to deal with the problem?

Isn't it time to say banging a square peg into a round hole doesn't work? That branding our children thieves because they're using a global mechanism to share information in exactly the way it was intended is counterproductive?

What's really required is a radical rethink of internet copyright, the deregulation of amateur and non-commercial creativity and probably some form of collective licensing to enable sharing economies to function in way that allows artists to be rewarded.

What we also need are politicians to make just laws for the people, not legislation that shows they are captured by vested interests.