New Zealand’s File Sharing Law Violates Civil Rights

New Zealand's file sharing law is actually a replacement of Section 92A of the Copyright Act. Fortunately, New Zealanders vehemently protested against the draconian measures outlined in Section 92A of the original law introduced in 2008.

It wasn’t oppressive enough that Section 92A called for internet suspension based on accusations of copyright infringement, the law stipulated disconnection would take place without being awarded a trial and without submitting any evidence in court. If people had not written letters to the appropriate ministers and complained in numbers, the law would have gone into effect on February 28, 2009.

To show solidarity and to inform the public about the implications of Section 92A, a group of artists formed Creative Freedom Foundation. Protesting New Zealand’s file sharing law via social media like Twitter, CFF led a week-long internet “Blackout,” which lasted from February 16-23. The blackout attracted Twitter's topmost tiers, including a British TV personality. The nonprofit also promoted the movement on New Zealand television and radio stations.

The Foundation objected vociferously against the “Guilt Upon Accusation” portion of the law as well as the penalties associated therewith. The National Business Review joined the protest and pointed out that in actuality the law meant that one person’s bad behavior could destroy an institution. 

As a result of the enormous public outcry, the government delayed implementation to allow for government reconsideration. On March 23, 2009, the government voted to throw out Section 92A and proposed to completely rewrite the section.

In response to the widespread objections to New Zealand's file sharing law, Parliament repealed that section and replaced it with Copyright (Infringing File Sharing) Amendment Act 2011, which officially went into force September 1, 2011. However, in August, P2P network monitoring had already begun. The replacement, with a continued intent to reduce illegal file sharing, replaced Section 92A with a “three-notice” regime, a $15,000 fine, and a six-month suspension of the internet.

The main focus of the rewrite was the three-notice process, which serves to educate the public about illegal file sharing while providing effective ways for copyright owners to enforce copyrights. It further assured file sharers they would receive adequate warnings that unauthorized sharing of copyright material is illegal.

Although the “three notice” regime is a gentler term than the more commonly used term of “three strikes,” the end result is the same. Copyright owners will be able to claim damages and request that the internet subscription of the file sharing infringer be suspended.

The element most faulted in Section 92A was the accused not being allowed the right to reply to an accusation. The new Act extends the jurisdiction of New Zealand’s Copyright Tribunal to hear both sides of the argument and to rule on cases of alleged infringement.

The government now gives account holders a reasonable amount of time to stop infringing before the enforcement phase takes place. The bill stipulates definite time frames so account holders are able to effectively address illegal file sharing activity happening on their internet connection. In addition, account holders also have the opportunity to challenge notices, and they may ask for hearings at the Copyright Tribunal to contest infringement claims.

Other than complaints about suspending internet accounts, the following have improved New Zealand’s file sharing law.
  • Replaced the far too broad definition of ISP (Internet Service Provider), which would have changed to include almost anyone with a shared connection or website. ISPs now include any organization, business, school, library, or government department that provides internet services. The new law reads, “IPAP” (Internet Protocol Address Provider).
  • Accused copyright infringer now has an opportunity to defend himself against the accusations.
  • Does not require ISPs to be the responsible party for deciding about disconnection; just required to transfer messages between accuser and accused.
  • Greater respect for account holder’s privacy.
Even though improvements were made to New Zealand’s file sharing law, the Act still has some major problems:
  • Holds the person whose name appears on the internet account responsible for all activity by any user of that connection. People will be responsible for everyone living in their domicile, parents will be responsible for their children, libraries will be responsible for their free internet terminal users, and businesses will be responsible for their employees. Simply sharing an internet connection can put a person at legal risk.
  • Presumes the accused is guilty until proven innocent. Unless the account holder can disprove the accusation, the Copyright Tribunal is expected to believe the media companies’ accusations. Even when accusations are proven time and again to be inaccurate, there is no penalty for making a false accusation.
Because disconnecting internet users for any reason limits the type media that individuals are allowed to use to express themselves, a UN report concluded that it is a violation of a person’s civil and political rights. Some UN officials were alarmed at the disconnection proposals in New Zealand's file sharing law and said that an individual’s internet access should never be terminated for any reason, including copyright infringement.


Thomas said...

It is hard to enforce the law against copyright infringement because of the nature of the technology behind it. File sharing has been the breeding ground for piracy. What they should do is make something that will make copying their products illegally without having to stop these file-sharing practices.

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