Auckland, 4 February 2009
The Telecommunications Carriers’ Forum has today released a Draft ISP Copyright Code of Practice for public consultation.
“The Copyright Act was amended in 2008 to include s92A which requires Internet Service Providers to have a policy to terminate the accounts of repeat copyright infringers in appropriate circumstances,” Telecommunications Carriers’ Forum CEO Ralph Chivers said. “This Draft Code is intended to be a template policy for ISPs, to assist them in meeting their obligations under the Act.”
The Draft Code has been developed by a TCF working party that includes representatives of NZ’s leading ISPs, the Internet Service Providers Association of New Zealand (ISPANZ) and Internet NZ. “This has been a very challenging piece of work given the importance of the issues involved,” Mr Chivers said. “I sincerely thank all those involved for the many hundreds of hours of effort that it has taken to get the Draft Code to this stage.”
“While TCF members consider that s92A is seriously flawed, we are nevertheless acting responsibly to ensure our Members have guidance when implementing the law. Ultimately, though, there are a number of issues which the government needs to address to ensure that New Zealand’s copyright law is fully reflective of the realities of the internet age.”
Mr Chivers noted that s92A has generated significant controversy – a debate that is mirrored in a number of countries overseas. “Much of the debate locally is a result of the very vague language of s92A. What constitutes ‘repeat infringement’ and ‘appropriate circumstances’ is open to a wide range of interpretations. We are therefore particularly interested in receiving feedback from the public and government on whether the approach to these issues in the Draft Code is appropriate, and whether consumers’ interests are adequately protected.”
“In developing the Draft Code, the TCF has engaged with a number of organisations that represent copyright holders in the music, performance, movie and software industries. Understandably, there have been a number of difficult issues for us to work through. Despite this, the engagement has been positive and constructive, and will continue.”
Submissions on the Draft Code close at 5pm on Friday, 6 March 2009. “This date was chosen to ensure that the public and interested parties have an opportunity to fully consider the Draft Code and provide considered feedback,” Mr Chivers said. “While the submission date is shortly after s92A comes into force, it is important that we have a fulsome debate about the appropriate approach to its implementation.”
A copy of the draft code will be available on the TCF website www.tcf.org.nz/copyright from the afternoon of Wednesday 4th February.
Submissions on the Draft Code should be emailed to email@example.com
or by post to:
Telecommunications Carriers’ ForumPO Box 302 469
Submissions should be received by the TCF by 5pm, 6 March 2009.
For further information and comment contact:
TCF Chief Executive, Ralph Chivers
ph 021 576 424 , firstname.lastname@example.org
Copyright Act s92A – what it says
“An internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.
... repeat infringer means a person who repeatedly infringes the copyright in a work by using one or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.”
What is an Internet Service Provider?
Under the Copyright Act, the definition of an Internet Service Provider goes much further than the traditional ISP. It includes schools, universities, libraries, businesses, government departments and any other organisation that provides internet services. All of these entities need to have a policy for managing their obligations under s92A.
The approach in the Draft Code
The TCF is particularly interested in feedback on the treatment of the following issues. All capitalised terms are defined in the Draft Code.
Standard of evidence
The Draft Code requires a standard of evidence that would be acceptable to a court. Any notice submitted by a Copyright Holder must meet this standard of evidence for it to be acted on by a signatory to the Code.
The Draft Code includes a pre-approval regime whereby Copyright Holders can have their evidence collection methodologies assessed. If their methodology is confirmed as meeting a standard that would be acceptable to a court, then they will become a Pre-Approved Copyright Holder, and their notices will be processed preferentially. Pre-Approved Copyright Holders will be required to abide by a code of practice and their status will be reviewed if their privileges are abused.
Non pre-approved Copyright Holders are required to provide sworn evidence on every occasion they submit a notice.
Any notices received by an ISP that meet the standard of evidence requirements will be passed on to the relevant internet User along with an Education Notice. At the end of each month a User who has received one or more Education Notices will receive a Copyright Notification.
If a User receives three Copyright Notifications in an 18 month period they will receive a Final Warning. A User that has received a Final Warning will be disconnected if any further notices are received from Copyright Holders.
Disputes from Users
No one will have their internet account disconnected without fair warning and an opportunity to take remedial action. The monthly Copyright Notice approach provides sufficient opportunity for those Users who are unaware that their accounts have been used for copyright infringement to take the necessary action.
Users are provided with an ability to dispute Education Notices through a Counter-Notice procedure. The Draft Code outlines a process where Counter-Notices are processed by ISP’s.
An alternative process where Counter-Notices are returned to Pre-Approved Copyright Holders is also provided and the TCF welcome views on its relative merits.
The Draft Code includes reserve provisions that enable an ISP to move directly to issue a Final Warning if it is apparent (to the required standard of evidence) that a User is engaged in significant copyright breaches or is abusing the Counter-Notice procedure.
The internet accounts of Essential Service Providers or Vulnerable Customers will not be disconnected under the provisions of the Draft Code.
The Code includes the concept of a Downstream ISP to ensure that any notices received from Copyright Holders are passed on to the entity that is in the best position to manage the allegedly infringing activity. A Downstream ISP may be another traditional ISP who has a retail relationship with the User, or they may be a business, school, library, etc who has a direct relationship of some kind with the User.
If an entity accepts that it is a Downstream ISP it will be expected to deal directly with Pre-Approved Copyright Holders and manage any notices received according to their own s92A policy.
By taking responsibility for managing notices associated with one of their own Users business, libraries, etc can avoid the possibility of having their internet access terminated by their ISP.