S92A, and other thoughts on the revised Copyright Act

There is quite a furore (e.g. #blackout) at the moment about the eminent arrival of the updated Copyright Act in NZ, pretty much all surrounding section 92A.  92A doesn’t appear in the official online copies (either HTML or PDF) – I don’t know if that is because it only takes effect from the end of the month, or because someone left it out.  The Amendment does have the wording:

92A Internet service provider must have policy for terminating accounts of repeat infringers

“(1) 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.

“(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

The outcry among the public is basically saying that this amounts to “guilt on accusation” – i.e. someone accuses you of copyright violations, and you lose your Internet access.  That isn’t what it says, however:

  • Termination needs “appropriate circumstances”.  I can’t see how any right-thinking court would think that “proof of guilt” would be an inappropriate circumstance.  I don’t see how “found guilty by a recognised court of law” would be an inappropriate circumstance, either.
  • Nowhere does it say that termination of a user that is accused of infringement is required.  It’s quite explicit in that actual infringement is required.  I fail to see where this section removes the requirement for proof.
  • Termination needs repeat infringement.  You could define repeat infringement as downloading two songs at once, but I believe the more commonly accepted definition (what a court would hopefully require) would be that infringement is done more than one occasion (ideally with some sort of notice or warning after the first infringement).
  • I’ve seen it said that ISPs will use draconian policies out of fear of legal action.  However, the Act specifically exempts any such action:

Merely because A uses the Internet services of the Internet service provider in infringing the copyright, the Internet service provider, without more,—

“(a) does not infringe the copyright in the work:

“(b) must not be taken to have authorised A’s infringement of copyright in the work:

“(c) subject to subsection (3), must not be subject to any civil remedy or criminal sanction.

An ISP could adopt a policy that does provide for immediate termination on accusation, of course.  But they can adopt any policy they like (that doesn’t itself break the law) – that’s how the free market works.  Nothing there has changed.  An ISP could also chose to implement a policy that puts a reasonable burden of proof on the person/organisation making the accusation – considering that many of the major ISPs in NZ have spoken out against the section, it doesn’t seem unlikely that they would do so.

New Zealand is pretty soft on crime (although hopefully that will change with the recent change in government).  If someone (provably) violates the law, and does so knowingly (i.e. I would personally include in a policy a requirement for a first warning, before it gets to “repeat”), then they should be punished.  The question is then whether their Internet access should be removed, or whether punishment should be left for the regular court process.  This is where I have a problem with S92A.

  • Although making it harder for a criminal to repeat offend is a good idea in general, it’s not common.  This is done in traffic offences – if you repeatedly offend, then you lose your license, or might even have your vehicle removed for a period of time.  Many crimes, of course, use only commonly found equipment (or none at all) – so this doesn’t apply to theft, assault, and other crimes like that.  I can’t easily think of a crime that requires specialised equipment – but there probably are some, and removal of a set of tools is probably not done in that case.
  • The section is vague, and the Act’s definition of “Internet Service Provider” is far too vague.  It would be better if it made clear that proof of guilt (e.g. a conviction by a recognised court) was required.

There are many more problems with the revised version of the Act (although it is arguably better than the version it replaces).  For example:

  • The definition of cache is wrong: it must be “for the sole purpose of enabling the Internet service provider to transmit the material more efficiently to other users of the service on their request”.  A cache may be legitimately used to transmit the material a second (or further) time to the same user.

Another example:

An educational establishment does not infringe copyright in a work that is made available on a website or other electronic retrieval system by storing a copy of the page or pages in which the work appears if—

(a) the material is stored for an educational purpose; and

(b) the material—

(i) is displayed under a separate frame or identifier; and

(ii) identifies the author (if known) and source of the work; and

(iii) states the name of the educational establishment and the date on which the work was stored; and

(c) the material is restricted to use by authenticated users.

As far as I can tell, this lets an educational establishment provide unrestricted copies of software to authenticated users, as long as the software is related to the course.  I doubt that’s what’s meant, but that’s how it reads to me.

Then there’s the section that’s meant to be one of the big improvements, stopping everyone that rips CD music (to put on a portable music player) from breaking the law:

Copying sound recording for personal use

(1) Copyright in a sound recording and in a literary or musical work contained in it is not infringed by copying the sound recording, if the following conditions are met:

(a) the sound recording is not a communication work or part of a communication work; and

(b) the copy is made from a sound recording that is not an infringing copy; and

(c) the sound recording is not borrowed or hired; and

(d) the copy is made by the owner of the sound recording; and

(e) that owner acquired the sound recording legitimately; and

(f) the copy is used only for that owner’s personal use or the personal use of a member of the household in which the owner lives or both; and

(g) no more than 1 copy is made for each device for playing sound recordings that is owned by the owner of the sound recording; and

(h) the owner of the sound recording retains the ownership of both the sound recording and of any copy that is made under this section.

This is great, but this specifically excludes video.  So although you can copy a legally purchased CD to a hard drive, then to an iPod, I am restricted from copying a legally purchased DVD to a hard drive, then to an AppleTV.  Where is the logic in that?

Time-shifting is also now permitted:

Recording for purposes of time shifting

(1) A person (A) does not infringe copyright in a programme included in a communication work, or in any work included in it, by recording it, if—

(a) A makes the recording solely for A’s personal use or the personal use of a member of the household in which A lives or both; and

(b) A makes the recording solely for the purpose of viewing or listening to the recording at a more convenient time; and

(c) the recording is not made from an on-demand service; and

(d) A has lawful access to the communication work at the time of making the recording.

(2) However, subsection (1) does not apply, and A does infringe copyright in the communication work recorded and in any work included in the communication work, if—

(a) A retains the recording for any longer than is reasonably necessary for viewing or listening to the recording at a more convenient time; or

(b) in the event that the person who views or listens to the recording wishes to make a complaint to a complaint authority, A retains the recording for any longer than is reasonably necessary to prepare and despatch the complaint.

So I can record Lost to watch it later, but I can’t keep it longer than “reasonably necessary”.  “Reasonably necessary” is far too vague.  I’ve kept programs on MySky for close to a year before getting around to watching them.  Is that “reasonable”?  Would copyright holders really care if recordings for personal use had no time limit?

My biggest concern is that this Act (and presumably many others) was developed/debated by people who have no idea what they are talking about (just read the debate transcripts, and it’s obvious).  Surely someone could be found to inform the politicians, so that they have some clue about the decisions they are making?

Disclaimer time: Note that I am not a lawyer, nor do I follow this extremely closely.  I may be wrong in places.  However, I have read the Acts (original, revised, and amendment), and also the transcripts of the various debates/readings that were held.  I’m not convinced that many of the other people writing/speaking about this have done so.  I also strongly believe that people should be entitled to certain rights (such as those that the Copyright Act provides) over works that they developed (i.e. I’m not anti-copyright), although there should be sensible exclusions.  I believe that many of the changes are positive, and that many of the rights are fair.  As those that know me know, if there is a reasonably convenient, reasonably priced method of legally acquiring content, then I will always use that (even though I have sufficient knowledge to easily obtain illegal copies).

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