S.92A Copyright Act repealed

Notwithstanding forceful submissions from business leaders, there still remains a real risk of businesses losing their Internet connections as a result of unauthorised peer-to-peer (P2P) file sharing of copyright material by employees.

Unauthorised file sharing is an area which existing legislation both in New Zealand and overseas struggles to control, as the infringing material typically does not pass through any intermediate server or get held on anyone’s website, rendering the US-style ‘notice and takedown’ approach a waste of time.

The Copyright (Infringing File Sharing) Amendment Bill, introduced to Parliament on 23 February 2010, is intended to remedy this gap in New Zealand law. Previous legislation (S92A Copyright Act 1994) faced determined opposition from Internet Service Providers (‘ISPs’) and supporters of Internet freedom, and is to be repealed under the Bill.

The Bill, foreshadowed in a Cabinet Paper released by Commerce Minister Simon Power in December, gives the Court power to suspend Internet accounts for up to 6 months as the ultimate sanction against online copyright infringement.

Although replacing Internet account termination with suspension sounds better, it really amounts to the same thing. It is now a given that Internet connections and services are essential to most businesses, and that any suspension would cause serious problems. Suspension of a business’s Internet connection for 1 month would be damaging enough, however 6 months would be just as bad as termination.

The Minister has said that the “courts would need to determine whether such a remedy is appropriate in the circumstances and would need to take into account some of the concerns raised by submitters in respect to vulnerable, essential services, and effects on businesses if their Internet was suspended due to the actions of an employee.” That is fine, however, what business owner wants to have to go to court through no fault of their own to defend the right to stay online?

It must be noted that suspension is the ultimate step in the proposed new procedures. The process will operate as follows: firstly, a right holder must issue 3 timetabled notices (detection, warning and enforcement) to Internet account holders via the account holder’s ISP.