So long Section 92A - new copyright bill revealed

A new look at New Zealand's copyright legislation was introduced to Parliament yesterday.

After much controversy last year, Section 92A of the Copyright Act has finally been repealed and a new version introduced to Parliament by the Minister of Commerce, Simon Power.

Called The Copyright (Infringing File Sharing) Amendment Bill, the new legislation aims to replace the previous bill with a three-notice system.

In a bid to avoid the controversy and social unrest that followed the original bill, the new bill is being positioned by politicians as a more user friendlier process.

Under the new bill, offenders will receive three warnings. First a detection notice, which is then followed by a warning notice should the internet subscriber be accused of infringing copyright again.

An enforcement notice is finally issued that could see third time infringers being fined up to $15,000 or have their internet disconnected for up to six months.

Giving credit where credit is due, the Bill does incorporate time frames within which subsequent infringement notices cannot be sent, giving accused infringers time to amend their copyright infringing ways.

The new bill also allows accused for copyright infringers who feel they have been unjustly accused to apply to have their case heard by a Copyright Tribunal at no cost.

This is definitely a good thing as the scope for wrongful accusations is potentially massive. Take, for example, the number kiwi broadband users using of Wi-Fi broadband routers.

Many are unsecured because setting up a secure encrypted wireless network is too complicated for most people, or because some older Wi-Fi hardware doesn't support newer encryption standards won't work with an encrypted wireless network. This makes it criminally easy for less scrupulous individuals to do drive-by downloads or to pull copyrighted content off the net using their neighbour's Wi-Fi connection.

Arguments such as these will need to be carefully investigated, and much of the cost of doing this will come out of tax payer pockets.

ISPs are also going to be burdened with the costs under the new bill. Matching internet subscribers to IP addresses supplied by copyright owners, and keeping track of the three strike process is, at best, going to be a deeply complicated undertaking and likely a costly nightmare as well.

While some of these costs will be met by copyright holders paying to lodge infringement notices, most ISPs will be left with little choice but to pass costs onto their subscribers.

The new bill also broadens the definition of who can be classed as an ISP (who are not liable for copyright infringement) to include businesses and universities.

Already struggling amidst the biggest recession since the 1920's, these newly-coined ISPs will also be required to administer and deal with any of their network users infringing copyright, adding further cost and complexity into day-to-day processes.

While copyright owners can ask for repeat infringers to be disconnected, they must do so through the courts and disconnections will last for up to six months.

This is good in that courts are geared up to hear both sides of any infringement argument and will bring some much needed legal rigour where it was lacking in the previous bill.

Although the courts will take the accused infringers need for internet access into account when weighing up any potential disconnections, the not-so good news is that voice over broadband telephony is growing at a rapid rate.

This in turn means that any disconnected infringers could find themselves without a landline, which could have potentially dire consequences in emergency situations.

This said, there appears to be nothing stopping a disconnected infringer from simply connecting up with another ISP, turning the court's original disconnection ruling into yet another costly waste of tax payer money.

Whilst the Copyright (Infringing File Sharing) Amendment Bill represents a step in the right direction (especially when compared to the original bill), it still incorporates some serious flaws.

Worse still, it could prove ineffectual as most serious infringers are will utilise encrypted virtual private networks to avoid detection by copyright holders.

(Pat Pilcher is employed by Telecom, but his views do not represent those of the company)