Let’s be very clear about this. If Labour and the National Government had not agreed on a compromise around the temination clause in the Copyright Bill, we would have a piece of legislation coming back to the House which could cut off NZers internet accounts for six months.
Labour would have opposed the Bill. It might have been a high moral stand but it would have resulted in a bad law.
A law that would be able to require people to be disconnected because they have shared files. It wouldn’t have been easy to achieve and would have required a convoluted journey of receiving several notices by mail from your internet service provider (such as Telstra Clear, Telecom etc)
You may have been taken to the Copyright Tribunal. Or the rights holder (of the film, music clip or video game) that you downloaded may have decided to make an example of you and had the matter referred to the district court.
No matter that you had downloaded whatever it was for your own enjoyment, not to profit from it in any way. The court could order you to be disconnected. Never mind if you were 12 years old and part of a family that relied on the internet for all kinds of things. Or if you were elderly and lived alone and used email and the internet to communicate with the outside world.
In coming years the internet will become increasingly more essential in all of our lives. Disconnection is a disproprotionate remedy for file sharing.
A Bill that enacted a termination clause would have seen termination used as a remedy. This way it wont. Unless the copyrights holders manage to push for a review and the Minister of the day decides to enact termination as a remedy. In which case it is on that Minister’s head.
National’s position was immoveable. Termination would remain in the Bill. Labour’s position was that we opposed it.
In reaching this compromise, Labour believed it was better to have a piece of legislation that did not use termination as a remedy even if it remains in the Bill as a future possibility.
We would prefer it wasn’t there at all. But we also believe this is the best possible outcome we could achieve as the Opposition. This is not our Bill. It was originally our Bill (Section 92A) and despite the good intentions to make it work, it resulted in a grand stoush between the different parties which required a rethink. Labour pushed for and supported that rethink. What we’ve ended up with is better. If not perfect.
We are concerned that the government appears to have said today there will be a two year review of the decision not to enact the termination clause. This is news to Labour. It wasn’t put before the select committte and you should note that there will be an election in NZ before that two year period is up. Labour would not support a govt-led review and this could become an election issue.
But we still have concerns about a number of aspects in the Bill and believe there could well be room for further compromise.
A couple of comments:
It was always my view that a fine for copyright infringement was much more appropriate than termination of internet access. The view expressed in the commentary to the Bill that an award made by the Copyright Tribunal could include a punitive element and not just be compensation-based is justififiable.
We believe and hope that the notice and notice system established between ISPs and rights holders will be sufficient for the bulk of cases.
We do however retain concerns that the process will be too cumbersome and bureacratic and that the costs involved in setting up and maintaining a process that identifies and makes contact with potential infringers will be cumbersome.
We note the concerns raised by some around section 122MA of the Bill around where the burden of proof lies for infringement. We are keen to talk further with those who are concerned about this.
On balance we have tried to convince the government to strike a balance between the rights of copyright
holders to have their intellectual property rights protected, and the reality that the Internet has now allowed far greater access to copyrighted works through file sharing.
And finally, it’s time for the debate to shift.
It’s time to move on from the issue of penalties for copyright infringement to looking at how we as a country can support new business models which enable our innovators and creators to benefit from their creativity and to control and distribute their own content to boost our economy and provide widespread access to information and entertainment. That’s what I want to see. Don’t you?