Internet users rights at risk, says InternetNZ

InternetNZ Executive Director Keith Davidson says the rights of Internet users are at risk.

“I urge everyone who is interested in the rights of Internet users to read the draft Code and provide input to the TCF’s consultation. Users should not be disconnected based on untested allegations.”

THE CODE

The Code aims to enable Internet Service Providers (ISPs) to meet the requirements of Section 92A of the Copyright Act, due to come into force on 28 February, by providing a policy for termination of accounts of repeat copyright infringers.

InternetNZ is represented on the TCF Copyright Working Party and regards the Code as a solid piece of work that has been created under serious time pressure.

Davidson says the Code has been produced in good faith and Copyright rights holders have been consulted along the way. InternetNZ regards it as a "best efforts" attempt to address their concerns, protect the rights of the public and meet the requirements of the law. However, issues remain.

RISKS

“Notwithstanding the best efforts of the Working Party to protect consumers and businesses, issues with the wording of Section 92A mean that confidentiality of an ISP’s customer details, and unhindered access to the Internet for families and businesses, are under threat,” says Davidson.

“ISPs will become unprotected enforcers for the entertainment industries, and also on behalf of anyone purporting to be a rights holder who may have a malicious axe to grind.

“Not widely known, is that under the Act any business that provides Internet services or access to its staff is regarded as an ISP and is therefore in the same difficult position.”

Davidson also says "repeat infringer" is not defined properly in the legislation and the principle of "innocent until proven guilty" is therefore under threat in any such Code or policy developed.

“At the behest of rights holders, ISPs and businesses that provide Internet access to their staff are expected to determine that someone is an infringer without there necessarily being court involvement, and make assumptions about what repeat infringement might be.

“Despite an ISP or business not itself infringing, they are made liable for a customer's copyright infringement if they do nothing. There is no "safe harbour" provided under the Act if they get it wrong and cut off an innocent party.”

SAY NO TO ALTERNATIVE PROCESS

The Code consultation includes an alternative Counter Notice procedure promoted by rights holders whereby users will be required to respond to the rights holder if they disagree and the Rights Holder will adjudicate on the validity of that dispute.

Davidson says “We understand the rights holders concerns but allowing rights holders to take on the role of judge and jury is not an appropriate solution. It is already outrageous that the Government is requiring ISPs to be judge, jury and executioner towards their own customers.”

He also notes that the notice process being outlined in the Code is not fair on families and businesses in terms of timeliness. “Rights holders should be required to provide their notices immediately upon infringement, otherwise families and businesses will have difficulty identifying the alleged infringer and putting in place meaningful education and disciplinary measures.”

HAVE YOUR SAY

Davidson says “IT IS VERY IMPORTANT that the public and businesses thoroughly read and provide feedback on the Code so that issues of confidentiality, access, liability and timeliness are highlighted and addressed. If they cannot be addressed satisfactorily in the Code because of requirements of the law then that feedback can and should be passed on to legislators”

InternetNZ’s first preference remains for the section to be repealed. The Select Committee that reviewed this approach last year agreed and removed it, with the Labour Cabinet reintroducing it at a later stage. Alternatively, the government should delay commencement of Section 92A beyond 28 February until satisfactory changes can be made in consultation with telecommunications and Internet industries.

Ultimately InternetNZ would like to see a First Principles Review of Copyright Law that would allow the Government to properly address the digital age and the unstoppable changes it implies for rights holders, the public and the law.

An additional InternetNZ document accompanies this press release (below), summarizing the Code.

The Code can be found here:
http://www.tcf.org.nz/news/a6a902ba-3214-4b5f-85e4-c6678f9ca31c.html

For more information contact:

Keith Davidson
Executive Director
InternetNZ
021 377 587
exe.dir@internetnz.net.nz

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InternetNZ notes on the TCF’s DRAFT Internet Service Provider Copyright Code of Practice

4 February 2009

The Telecommunications Carriers’ Forum has today released a Draft Internet Service Provider Copyright Code of Practice for public comment. The Code is designed to assist ISPs and businesses that provide services over the Internet to comply with incoming Section 92A of the Copyright Act regarding repeat infringement of copyright.

InternetNZ is represented on the TCF Copyright Working Party and regards the Code as a solid piece of work that has been created under serious time pressure to address poorly written law. InternetNZ has stated on numerous occasions that Section 92A should be repealed or delayed and further consultation undertaken.

This document aims to aid understanding of the Code by summarising and describing it in plain language and should be read in conjunction with the Code document.

Section A: PURPOSE

The Code is designed to not just meet the legal requirements, but also promote respect for Copyright and educate the public and business community.

Section B: DEFINED TERMS
An allegation notice from a claimed Copyright holder to an Internet Service Provider (ISP) or business is called a “Copyright Holder Notice” and a subsequent notice from an ISP or business to a user is called an “Education Notice”.

A “Downstream ISP” is a key concept in the Code, recognising that the ISP or business that gets the original notice may not be the closest ISP or business to the user and so notices will be forwarded on.

“Infringement” – see Section 10 and 11 – in the Code includes unproven allegations when an ISP or business determines that evidence is sufficient. It explicitly includes a Copyright Holder Notice that complies with the Code requirements as providing sufficient evidence.

The definition of an “ISP” is far broader than a traditional ISP. As can be seen in the footnote it includes any business that provides Internet services, including to its own staff.

“Person” in the code includes humans and businesses etc.

“Pre-approval” enables a special class of rights holders who, following an application process, are treated as being more trustworthy.

Section C: PRINCIPLES

The principle of “innocent until proven guilty” is supported in the Code. However, since it is ISPs that are forced make this decision by virtue of the Act, that presumption does not extend to guilt being proven in a court. The principle used is that users are considered innocent until an ISP has reason to believe based on evidence that would be acceptable to a court that a user is a repeat infringer.

ISPs won’t divulge customer information unless a customer is claiming to be an ISP under the Act, in which case they will be required to authorise disclosure of that information. This allows an ISP to excuse itself out of the loop if it is not their customer that is alleged to be infringing.
 
It is fundamental to the Code that it is about an educational process with termination of an Internet Account as a last resort. Also, vulnerable customers and essential service providers will get extra care and Downstream ISPs will not be cut off.

Section D: COMPLIANCE

Any business can join up to be bound by the Code. The Code is a best efforts attempt to meet Section 92A requirements.

Section E: REPEAT INFRINGEMENT

In a nutshell, if a user has one undisputed education notice in each of three separate months (i.e a total of three) over an 18 month period then after a final warning they will receive a termination notice and be cut off. It’s not the infamous “three strikes” policy, rather it’s four surrounded by a lot of educational material.

Section F COUNTER NOTICE PROCEDURE

If a user disputes notices in the correct fashion then the ISP won’t count them towards four strikes. These notices go back to the ISP. If rights holders feel this is being abused in a particular case they can seek that customer’s details through the courts.

Rights holders have proposed an alternative approach, included in the consultation, where in the case of disputes involving pre-approved rights holders the user must dispute directly with them. In that case, if the rights holder considers that the user’s dispute is invalid it can advise the ISP and the user’s dispute will be rejected.

If an ISP or business disputes a notice on the basis that it is not the Downstream ISP with respect to the notice then their identity information will be provided to the rightsholder if the rightsholder is preapproved, or alternatively if the Downstream ISP allows that information to be released.

Section G: FINAL WARNING AND TERMINATION

Each month there’s a Copyright Notification sent to users that summarises education notices and disputes. If they have three undisputed unexpired notices in three separate months then they’ll get a final warning as part of their Copyright Notification. If another notice comes in and they still have three undisputed unexpired notices then only a court order will prevent termination.

Note ISPs and businesses retain overriding discretion to cut off serious infringers at any point, taking account of the purposes and principles of the Code.

Section H: VULNERABLE CUSTOMERS AND ESSENTIAL SERVICE PROVIDERS

ISPs and business must exercise social responsibility in respect to vulnerable customers and essential service providers, with all available avenues explored before termination.

Section I: NOTICES

It’s all got to be in writing (email usually) – see Annexures

Section J: DATA RETENTION

All related information must be kept for at least 2 years from the date of the alleged infringement.

Section K: COMPLAINTS

Complaints against parties subject to the Code can be made under the TCF’s Customer Complaints Code and an enforcement agency can be brought in by the TCF to investigate and action taken as necessary.

Section L: GENERAL

Misc details.

Section M: REVIEWS, EXPIRY, REVOCATION AND AMENDMENTS TO THIS CODE

The Code will be reviewed regularly with public consultation each time.

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ANNEXURES
Includes process diagrams that reflect the Code, examples of notices, and details of data retention requirements.