Gav's Blog

Yesterday I received NZ Posts infamous survey in the post and was staggered at the depth of questions it was asking. I still have not decided on the most appropriate form of response to NZ Post using said survey. In the meantime, I have raised a number of issues to the Minister for State Owned Enterprises, Simon Power, about what I believe is a very inappropriate survey being undertaken by an agency of the Crown. The Privacy Commissioner also recently released a media statement on the survey. I see ConsumerNZ has also come out against the survey.

To: The Honourable Simon Power, Minister for State Owned Enterprises (s.power@ministers.govt.nz)
Copied: Commerce Commission (info@comcom.govt.nz), Office of the Privacy Commissioner (enquiries@privacy.org.nz)

As the Minister for State Owned Enterprises, I wish to register with you my distaste at the current business tactics of New Zealand Post. The New Zealand Post survey, whilst not illegal from a privacy perspective, is highly inappropriate for an agency of the Crown. State Owned Enterprises (SOEs) should not be collecting any more information than is required to undertake their business with citizens of New Zealand.

I wish to raise the following issues for you to consider and take action to resolve:

1. NZ Post is using trust as a competitive advantage

NZ Post is promoting itself as a ‘trusted’ organisation that places itself at a competitive advantage over other businesses that may be attempting to collect the private information of New Zealand citizens. E.g.

Taken from The New Zealand Post survey – privacy policy.

“We are a trusted New Zealand organisation who touches thousands of New Zealanders every day. To protect the privacy and confidentiality of your personal information we always ensure that our policy and processes comply with the following…”

Yet at the top of the same page…

“By undertaking the New Zealand Post Survey, you and your partner’s name and contact details may be provided to organisations from New Zealand and overseas…”

How can we trust NZ Post if they have openly stated that they will provide information to organisations overseas? Surely that is a breach of trust in an agency of the Crown?

I believe it is highly inappropriate for NZ Post to be using its privileged SOE position to be undertaking such an invasive survey. Many Kiwi’s may implicitly trust NZ Post more than any other commercial entity undertaking the collection of personal information for marketing purposes – and this may result in a higher number of survey returns. Kiwi’s should have the expectation that agencies of the Crown will not undertake such activities and only focus on their core business.

2. NZ Post is leveraging their delivery network in an anti-competitive manner

Any of NZ Posts competitors that want to undertake the same survey – would have to pay for postage and delivery using NZ Post’s network. My understanding is that only NZ Post has the reach for mail delivery to undertake a survey of this extent. I am assuming that NZ Post is undertaking this survey at cost or cheaper, effectively leveraging their existing mail delivery infrastructure. This may place NZ Post in the position of being the only NZ organisation that could actually afford to undertake such an endeavour. I believe this is anti-competitive as NZ Post is making use of an effective postal monopoly to undertake this survey, greatly reducing the costs they would have to pay when compared to other New Zealand businesses – a number of which exist in the Direct Marketing industry, and would no doubt love to enjoy the advantages that such a rich database of private information about Kiwi’s would provide for direct marketing purposes.

In light of these issues, I believe that as Minister for State Owned Enterprises, you should direct NZ Post to stop collecting private information for the sole purpose of direct marketing. In addition, all information that has already been collected should be destroyed.

This is not an activity that State Owned Enterprises should be using their privileged, trusted and often monopolistic positions to be undertaking. It gives them an unfair competitive advantages over other New Zealand businesses that operate in this and related areas (to be clear – none of which I have interests in).

I look forward to a timely response in this matter.

Yours sincerely,

Gavin Treadgold

The Government has today announced that they are looking at improving Government procurement practices. This is a good thing – there are certainly some improvements to be made.

Decisions on procurement can determine how government delivers its functions and services.  The government’s procurement reform agenda will drive cost savings, releasing fiscal savings to be used in other priority areas.

Substantial cost savings will be delivered with the establishment of Centres of Expertise within lead agencies to negotiate all-of-government contracts in common-spend areas.

One area that needs significant improvement is the documentation associated with tendering. Many Government tenders require a fair amount of associated information, such as demonstration of previous projects, and profiles of individuals. This has to be replicated in some form for each and every tender. It would be very useful if part of this reform process involved the creation of a website where businesses were able to load both business and personnel profiles and instead of having to include these with each and every tender. In fact, if they were quite smart about lowering business red tape associated with Government tenders, Government would actually create a website through which the whole tender process is managed.

It should allow:

• Businesses to register their profiles, capabilities, personnel and past project experience
• Agencies should be able to post comment on past projects
• Agencies should be able to create a template for a tender that all businesses use as the basis for building up their submission
• Businesses then create their draft and make the submission electronically – no more posting/couriering of three paper copies!
• Agencies would review each tender and privately comment on and rate through the same website

Not long ago I wrote briefly about my concerns of the United Nations finally deciding to get involved in the LTTE conflict in Sri Lanka – making the point that the ‘international community’ has ignored this conflict for years, and now, only as it nears its end, has it decided to try and do something.

Today we see the full scale of the hypocracy of this action, by attempting to compare it to recent events in Pakistan.

Up to 15,000 troops have been deployed to take on 4-5,000 militants… The fighting has already displaced some 200,000 people, while a further 300,000 are estimated to be on the move or about to flee, the UN says… “We are feeling so helpless, we want to go but can’t,”… The army has also accused the Taleban of holding the civilian population hostage and blocking their exit… The US says the militants in northern Pakistan pose a direct threat to its security, and has demanded they be confronted. Pakistani military spokesman Gen Athar Abbas said the military’s objective was to eliminate the militants from the Swat valley and also the neighbouring districts of Dir and Buner.

Well, you tell me if that doesn’t sound the same situation as Sri Lanka? The difference?

One country has been ignored by the international community, decided to do its own thing, and gets told off in the final minutes. The other, with a nearly identical situation, is given the go ahead to ‘wipe them out’.

This internal conflict could impact on US operations in Afghanistan so the US is all for this action. The LTTE conflict has no direct impact on the US, so they are more than happy to support involvement by the UN to broker a peace deal. Somehow I don’t see the UN being involved in the Pakistan conflict. What’s the bet Pakistan won’t see a UN inquiry?

I’ve wasn’t going to write about the current events in Sri Lanka, but I just wanted to add a voice of support to comments made recently¹² by Sanjiva Weerawarana on his blog. I’ve known Sanjiva since mid-2005 when I got involved with the Sahana project that started in Sri Lanka following the Tsunami. I’ve just returned from 6 days in Colombo in late March.

The brief point I want to make is the following. For years, the international community appears to have ignored what has been happening in the LTTE controlled territory in the north and east of Sri Lanka. It was the Sri Lankans that had to deal with many suicide attacks, even some including LTTE controlled jets.

Finally, the Sri Lankans had to take action, and they have. After the global community hadn’t shown any will to resolve the issue. The way that the LTTE have embedded themselves in the civilian Tamil population has made it inevitable that there will be fatailities when going after the LTTE.

However, over the past few months, the Sri Lankan military has effectively reduced the control and influence of the LTTE significantly and restricted them to an increasingly small stretch of land. So much so, the end game is almost here.

My point is that now is not the time for the international community to come wading in and act all righteous about the civilian casualties in the north. To stop the Sri Lankan military now may allow the remaining LTTE to get away, and or regroup. This is the time when the military needs to continue and finish the LTTE off. To stop now, would mean that all of the civilian and Sri Lankan military lives that have been lost to date would have been in vain. They would have been wasted.

No, let the military finish the job, and ensure that all the lives lost were not in vain. To force proceedings to stop now would be akin to stopping the Gulf War in 1991, and then having to go back in another 10 years later to finish the job properly.

The international community has had its chance to assist resolution and failed. Sri Lanka needs to be able to finish what the LTTE started.

On a personal note, it was interesting comparing the state of Colombo from my trip there in late March (2009), to my trip there in September 2005. In 2005, the military presence was transparent. This time round it was as overt as it could possibly be. Countless green sandbag bunkers on every main road, and soldiers everywhere. It seemed to almost be a different city – defined by the military presence. I was staying at the Colombo Hilton in the Fort district, and of course we had the Army headquarters and Government buildings all around us. Of course this meant we were in the safest part of the country. This was clearly a result to the more recent attacks³ against Colombo waged by the LTTE.

1. National Post editorial board: Sympathy for Tamils, but not Tigers [↩]
2. Share the blame [↩]
3. List of LTTE attacks on Wikipedia [↩]

NZ National Party just twittered a new press release on clamping down on red tape. Here is my reply asking that the Copyright Amendment Act be included in the review as it is going to impose significant compliance costs on businesses that provide no benefit other than to copyright holders.

To the Honorable Mr Hide:

I urgently request that you add the compliance costs for businesses associated with Section 92 of the Copyright Amendment Act to the list that require review. The current reprieve until later this month does not suggest that any changes will occur in the compliance costs associated with this Act.

The draft TCF Code does nothing to deal with the fact that businesses will still effectively be an ISP as defined in the Act. This will include compliance costs associated with implementing stricter firewall rules (e.g. to ensure that employees are unable to use peer-to-peer software), and require expensive tracking software to log all employee activity on the business internet connection (accurate auditing will be required to either identify an offending employee, or to prove to the upstream ISP that no offence was committed).

If it were not for the Copyright Amendment Act, these measures would not need to be implemented. As it stands, every small business in New Zealand is going to be stuck with potential compliance costs in the thousands of dollars just to upgrade their organisations firewall to comply with the Act.

To paraphrase the press release – “Businesses want to get on with productive activity without being hindered by silly rules imposed by inappropriate regulation such as the Copyright Amendment Act”.

During a recession such as this now is not the time to be forcing small businesses to waste time and potentially thousands of dollars in implementing measures to protect their organisation against poorly drafted legislation. Times are such that small businesses have better uses of their money.

Kind regards,

Gavin Treadgold

Section 92 exposes businesses to a significant risk as more businesses have come to rely on their Internet connection. Either spend thousands to tighten up your organisation’s firewall and policies and mitigate some of the potential downtime if your organisation is identified as a copyright infringer; or don’t comply, and when your organisation is identified as an infringer because of the possible actions of one of your employees – and you won’t have the system in place to identify and defend your employee in case they have been falsely accused.

Should businesses be forced to spend little spare money on a compliance cost that is only going to have a detrimental affect on cashflow during a recession? No.

Whilst I respect and support copyright holders (I’m one myself as a photographer and maybe soon an open source programmer) – businesses should not have to incur expenses because the entertainment industry wants them to become their copyright policeman.

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

Mark has been doing some great digging on Section92. He’s just found and blogged that the Officials responsible for reviewing the Copyright Bill at the time suggested that section 92 be removed as existing arrangements already provided the tools required.

I’m still convinced that Section 92, and the ACTA negotiations, are part of a larger effort preparing the ground for a Free Trade Agreement with the United States. Copyright and Intellectual Property are one of the biggest exports from the US, and they are trying to expand controls globally to protect their interests. This however comes at the detriment of small creative folk that can’t compete with large multi-national organisations. This is clearly indicated in the structure of the complaint process within the new act that favours large organisations and makes it difficult for small copyright holders to make complaints.

These changes in legislation are non-negotiable, and likely a pre-requisite to start more formal Free Tree negotiations with the United States. This would likely explain why both major parties (Labour and National) have been for this bill all the time. They see it as a pill that has to be swallowed with the intent on snagging a United States FTA at the end of it all.

Lest I tar and feather National with all this Section92 stuff, let us not forget that it was actually Labour that wrote, modified and was the Government at the time this legislation was passed last year. National must be starting to wonder what the smell is coming from the nappy it has got in its hand. Might be an interesting week for Simon Power and Steven Joyce.

To the Honourable Steven Joyce
Minister of Communications and Information Technology
s.joyce@ministers.govt.nz

Re: Copyright Act Section 92

If the current version of Section 92 of the Copyright Act goes live on February 28, I believe that this is going to have significant consequences for the Communications and Information Technology sector in New Zealand.

1. As a small business IT manager, this legislation is going to incur significant compliance costs as it will means trips to two of our three offices to modify firewall rules. This is a risk management approach to tighten the use of the Internet in our business to reduce the risk of being accused of copyright infringement. As our business mainly works for government agencies, this means the costs of complying with this legislation will be passed onto Government in our case. For other businesses they will pass it on to their customers. Also, I don’t believe there is technology that I as a small business IT manager can install that will scan the copyright status of every bit that goes over our office Internet connections, making it very difficult for me to police and monitor our employees.

2. As a photographer that uses the Internet to sell microstock photography overseas to generate some income (and effectively makes me an exporter), this law appears to give little to me in terms of protection against copyright infringement of my works. Rather the law and the draft TCF code appears specifically designed for large multi-national copyright holders rather than the small businesses and individuals that make up the majority of New Zealand business. This is inappropriate for New Zealand, and the law and regulations should be crafted to provide maximum protection to small New Zealand business – not large multi-nationals.

3. The nature of modern information technology – particularly on the Internet – is a lot about ‘mashing up’ content and ideas. This is where data and content from multiple sources are combined to present new and interesting views and manipulative tools. This law will ensure that there is less of this likely to occur, as individuals like myself will be unlikely to risk mashing up data – lest we accidently utilise a data source that was not clearly indicated as copyright.

I urge you to defer the February 28 introduction until such time as far wider and more robust consultation can be undertaken to develop a fair copyright law that is designed for the people and businesses like myself, and not for overseas corporations.

I am disappointed to see that National is supporting this anti-New Zealand business legislation that does nothing to protect individual copyright holders like myself, and is designed entirely for multi-national copyright holders.

Perhaps the one positive consequence this will have for your portfolio if the current law remains in place, is that New Zealanders will give up on the Internet, and you’ll no longer be faced with the challenge of having to get our broadband up to speed as New Zealanders will cut back significantly on their use of the Internet. I know I will, and that will have financial implications for ISPs and many New Zealand businesses that rely on the Internet.

Yours sincerely,

Gavin Treadgold

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

Re: Copyright Act Section 92

As the Minister for both Commerce and Justice I would like you to consider an urgent review of the provisions of the new Copyright Act destined to become law on February 28.

1. From a justice perspective I feel this is a very poorly constructed legal mechanism as it allows consequences and actions to be taken without evidence. As it currently stands, the Telecommunication Carriers Forum Code of Practice has not been well received by the large copyright holders, and they are proposing alternative measures that allow all action with only a accusation, and little hard evidence. In addition, there is enough difference of opinion between the TCF Code and large copyright holders that there won’t be a resolved process in place by the 28th of February. As Justice Minister I believe you are in a good position to see this poorly formed Labour legislation repealed until such time a fairer and more robust solution can be developed.

2. As a photographer that makes some part time money selling microstock photography, this legislation gives me little to protect my works, as the proposed mechanisms are mostly designed to benefit large copyright holders, but not individuals and small businesses – those that make up the majority of New Zealand enterprise. As the Minister for Commerce, I believe that this legislation needs significant review to ensure that it is designed to support the small copyright holder MORE than the large copyright holders, as we are the ones that really need protection.

I hope that you will seriously consider the many flaws of the legislation as it stands, and do the right thing and ensure that it doesn’t go live on the 28th of February and become a significant embarrassment to your new Government, and indeed embarrass the country to the rest of the Internet-connection world.

Yours sincerely,

Gavin Treadgold