ISP copyright infringement – victory in NZ? … maybe not

With copyright infringement and ISPs a hot issue at the moment, we were interested to hear some news from New Zealand on the topic.

Online civil liberty group, Electronic Frontiers Australia, reports on a ‘remarkable victory’ by ISPs in New Zealand in relation to what EFA calls ‘guilt upon accusation’ laws.

Sounds promising, we thought, as we followed the link in our RSS reader.

Problem is, when we got there, we couldn’t figure out what was particularly remarkable or victorious.

Apparently, legislators across the Tasman have agreed to hold off implementing s. 92A of the NZ Copyright Act.  That section would have required ISPs to:

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

Sound familiar? It’s almost identical to s. 116AH of the Australian Copyright Act which sets out the safe harbour regime.

The difference, it seems, is that where the words in the Australian legislation set out safe harbour conditions (i.e. conditions under which damages cannot be awarded against an ISP) which can be disregarded (at the ISPs peril of course), the words in the NZ legislation provide a positive duty requiring ISPs to ‘adopt and reasonably implement’ a repeat infringer termination policy.

EFA correctly points out that a NZ ISPs would need some guidance on what such a policy should look like and how to determine who a ‘repeat infringer’ is. It’s just as well then that a draft code of practice has been released. The draft code essentially provides for a ’3 strikes’ policy where:

• copyright owners can serve copyright notices on ISPs where a user is infringing
• provided the notice satisfies the requirements of the code, it is taken as evidence of infringement
• the ISP then notifies the user that a copyright notice has been received
• if the user replies and denies infringement, the user is taken not to have infringed (for the purposes of s.92A)
• if the user doesn’t respond or doesn’t deny infringement and this happens 3 times in 18 months, the ISP should terminate the account

Seems fair enough.  Copyright owners may think that it’s too easy for users to escape termination by simply denying infringement but that’s not really the issue. The issue isn’t how best to enforce copyright – that’s already sufficiently covered by the law. The issue is: what does an ISP have to do to comply with the law and to avoid liability – and is this realistic?

In other words, is a requirement to ‘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’ an unrealistic burden on ISPs?  Does it, as EFA suggests, impose a law of ‘guilt upon accusation’?

The answer, clearly, is no.

The requirement to ‘adopt and reasonably implement a policy’ is achievable. Remember, we’re not talking about a requirement to implement a reasonable policy, or to implement a policy that determines if infringement occurred, or to penalise an ISP for not terminating an account. The requirement is to reasonably implement a policy. We know this is achievable because the draft code provides such a policy. Adopt and follow it and you’ve adopted and reasonably implemented a policy.

What internet-shattering law were they fighting against in NZ again?

Turning to the Australian context, the EFA has this rather interesting thing to say:

The delay in the NZ law is a good sign, but there are still many more problems. The current case before the Federal Court between AFACT and iiNet will examine what responsibility ISPs have under Australian law, which already includes a provision requiring termination of repeat infringers.

The text in bold is pretty close but does not reflect the key point of the safe harbour provisions.

There is no direct requirement for an Australian ISP to terminate repeat infringers. There is no requirement in Australia for ISPs to even adopt and reasonably implement a repeat infringer termination policy. ISPs do so to bring themselves into safe harbour.

We think an ISP who doesn’t do so is crazy – it’s an insurance policy that limits the damage if things go wrong. But taking out such insurance isn’t mandatory.