Gav's Blog

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

To the Honourable Peter Dunne
p.dunne@ministers.govt.nz

Re: Copyright Act Section 92

I would just like to say thank you for publicly coming out against this poorly developed legislation. I hope you are able to attract more attention in the coming days to reinforce your message and ensure that this legislation is deferred so that a more realistic and evidential approach can be taken to the enforcement of copyright breaches.

As a photographer that produces and sells some micro-stock photographer overseas, I support the copyright. However the current structure of Section 92 and the proposed Telecommunication Carriers Forum Code of Practice are designed entirely to support an enforcement framework that only benefits large international copyright holders, and makes it expensive and difficult for a small copyright holder like myself to use the legislation for any breach in my copyright.

For a country built on small business, this is an unfair law.

Thank you again for for your public stance on this issue.

Yours sincerely,

Gavin Treadgold

To the Honourable Rodney Hide
r.hide@ministers.govt.nz

Re: URGENT Copyright Act Section 92

I bring your attention to the Copyright Act that as of February 28 2009 will introduce significant compliance costs on small businesses in New Zealand.

The new legislation effectively turns a business into an ISP and makes management for that business responsible for implementing measures to ensure that employees cannot download copyrighted material. There are two key issues here for me:

1. This introduces a new compliance cost on small business. Each small business will need to modify their firewall settings to block as many IP ports as practicable especially those ports used by file sharing software. In many firewalls, these are not blocked by default for out-going connections from within the business network. This means that each business will need to adjust the firewall for each Internet connection within their business (e.g. one for each office – in my case three). In my case this will mean flights and other travel costs associated with complying with this poorly drafted Labour legislation as well as time developing policy and process. At the same time, blocking these ports is not necessarily desirable for all businesses as they have real and legal uses, such as downloading large Linux distributions – a perfectly legitimate use of peer-to-peer file sharing technology, and one that I often use in my business. In addition, it may require further tightening of the policies of users computers to ensure that they don’t install software that is capable of breaching copyright via file-sharing – once again this increases compliance costs associated with ensuring that our business does not fall foul of the new and poorly worded law.

2. The current structure of Section 92 and the Telecommunications Carrier Forum Code of Practice is heavily geared towards large media companies. As a small part-time photographer that is making a little money selling microstock photography overseas, it is not necessarily practical for me to register and pay the registration fee associated with filing a copyright complaint under Section 92. This means that the legislation is only going to provide tools to large international copyright holders, and provide little protection for small individual copyright holders such as myself.

I am also concerned that our business Internet connection could be taken down based on accusation alone – and not after the rigour of the judicial process.

As both an MP for ACT that stands up against compliance costs for small businesses, and the Associate Minister for Commerce, I urge you to ensure that Section 92 in its current form does not go live on February 28, and that it is reviewed and wider copyright holder and Internet user stakeholder consultation is held to ensure that a fair and reasonable Copyright Act is enacted.

Yours sincerely,

Gavin Treadgold

Update 2009-02-20: And a brief reply from ACT.

ACT opposes this amendment of the Copyright Act.

It is our hope that the National Government will review the law, and strike out this clause.

regards

Sandy Grove
ACT Parliamentary Office Manager
Office of Hon Rodney Hide
WELLINGTON
Ph 04 817 6630

As with quite a few others, I have now blacked out a number of my profiles (including here with the official protest WordPress theme, Flickr, Twitter, Facebook, LinkedIn and Gravatar). More on this later. In the meantime visit Creative Freedom NZ for more info.

What else can one say? The law is broken and 92a should be immediately repealed.

Copyright Law “Ethically Flawed”, says NZCS

PRESS RELEASE – NZ Computer Society Inc. (NZCS)
15 January 2009
For Immediate Release

The New Zealand Computer Society (NZCS) today labeled Section 92a of the new Copyright Amendment (New Technologies) Act 2008 “Illogical” and potentially “Ethically Flawed”.

The criticism comes after NZCS Chief Executive wrote to ICT Minister Steven Joyce last week asking him to intervene to prevent the changes coming into force in February.

Section 92a, championed by previous Associate Arts Minister Hon Judith Tizard, states that Internet Service Providers must look to disconnecting the Internet service of those that have been repeatedly accused of accessing copyrighted material online.

Almost every technology commentator in the country has spoken out against the changes as well as every significant ICT representative organisation in New Zealand, including the NZ Computer Society (NZCS), InternetNZ, Telecommunications Users Association of NZ (TUANZ), the ISP Association of NZ, Telecommunications Carriers Forum, Women in Technology, the NZ Open Source Society, and many others.

The new law has also prompted the creation of the Creative Freedom Foundation, a group of creative artists strongly opposing the changes and furious that the changes are being justified in their name.

“NZCS strongly believes in the concept of Copyright, and ensuring artists have access to adequate protection”, Matthews said today. “However this law is a giant step too far and badly upsets the balance between protecting copyright holders’ rights, and the rights of computer and Internet users in New Zealand”, he said.

“Placing ISPs in the position where they have to act on accusation alone, without proper judicial process, places them in an impossible situation where they are expected to take an unethical stance and action by potentially denying an essential service from kiwi families and businesses, based on the accusation of a third party”, Matthews said.

“So either they risk breaching ethical standards of behaviour, or risk breaching the law”.

“Guilt by accusation is not acceptable in any other area of law, not appropriate in New Zealand, and should be rejected in the same way it has been in many other countries where similar laws have been proposed, especially when it places law-abiding companies such as ISPs in this impossible situation”, Matthews said.

“This could potentially affect families, businesses, schools and libraries”, Matthews said, who likened the Act to threatening to cut the electricity off from a library if someone photocopied too many pages of a book. “Internet access is a basic necessity in today’s digital age and this law interferes with that”, he said.

“There’s very good reason why, almost without fail, every commentator and ICT representative who understands the potential consequences of this law has spoken out against it”, Matthews said. “We ask that the new Government hears the voice of the ICT community and acts to ensure the rights of computer and Internet users aren’t severely eroded over what is regarded as a civil matter”, he concluded.

ENDS

Update/20090116: And now the New Zealand Library and Information Association of New Zealand has chimed in on the matter too. Interesting to note the risks to libraries – they could potentially lose their Internet connection. Via McGOVERN ONLINE.