Gav's Blog

To the Honourable Simon Power
Minister of Justice and Commerce
s.power@ministers.govt.nz

Re: Copyright Act Section 92

In response to your answers at question time today regarding Section 92, I would like to remind you of the following.

1. The TCF Code of Practice that you so happily promote will not be approved in in place until sometime in April by the time consultation has been completed. This leaves a legal vacuum in terms of process for management of the complaints process.

2. The TCF Code of Practice as it stands does nothing for small copyright holders such as myself. It is geared entirely for large multi-national copyright holders. This is unfair and penalises those small businesses in New Zealand that produce content.

Please delay or repeal Section 92 until such time as:

a. The process has completed wide consultation and a finalised TCF Code of Practice is available. Section 92 should not be enacted until this is available and widely understood.

b. The legislation is geared more for the small copyright holder such as the individual content creator – we are far more at risk of having our content stolen and don’t have the resources that large copyright holders have to enforce copyright.

One can only assume that if Section 92 still comes into law on February 28, that you and the National Government does not consider small content creators valuable to the New Zealand economy.

Yours sincerely,

Gavin Treadgold

update 20090305: Receive a template reply back from Simon Power’s office. Copy posted here for posterity. I believe there are many of these floating around

Dear Sir/Madam,
The Minister of Commerce, Hon Simon Power, asked me to thank you for your email regarding section 92A of the Copyright Act 1994. Your concerns have been noted.

Section 92A allows for termination of accounts of repeat infringers in appropriate circumstances. A purpose of this provision is to provide an effective means for dealing with behaviour which clearly infringes copyright, recognising that this behaviour can be costly for New Zealand’s creative industries. This is especially important given recent technological developments which now make it easier for online copyright infringement to occur. This amendment is not intended to deprive law-abiding businesses or private users of access to the internet.

Some have interpreted this legislation to assume guilt upon accusation of copyright infringement. There are concerns that this could lead to the termination of an alleged infringer’s internet account without evidence or opportunity for a user to provide a defence. In order to clarify the operation of section 92A, a voluntary code of practice (the Code) is being developed by internet service providers (ISPs) in consultation with the public and copyright holders.

In brief, the Code will likely outline that in accordance with section 92A, a user will receive fair warning regarding an alleged infringement. The user will then have the opportunity to refute any or all of the alleged infringements. As a backstop, section 92A only allows for account termination in appropriate circumstances. It is unlikely that termination will be appropriate where an alleged infringement has been disputed.

Section 92A has been delayed from coming into force by one month until 27 March 2009. The purpose of this delay is to allow ISPs and rights-holders time to complete the joint development of the Code. If a voluntary code is developed and the new section is implemented, both will be reviewed within six months to see how they are working.

It is important that the Copyright Act achieves an appropriate balance between the interests of copyright creators, owners and users.

Thank you for taking the time to raise this with the Minister.

Yours sincerely,

David Lilly
Private Secretary – Commerce