(crossposted from CreativeFreedom.org.nz)
Clay Shirky’s Newspapers and Thinking the Unthinkable has already become a classic essay about the times we’re living in and the changes in media caused by the internet.
(crossposted from CreativeFreedom.org.nz)
The Wall Street Journal asks, “How could a democratic government consider cutting off Internet access for people who haven’t been convicted of a copyright violation? [...] New Zealand changed its copyright law to be in accordance with the Digital Millennium Copyright Act in the U.S., [...] In the U.S., it was assumed that repeat infringers would be people who are tried in the court of law. And in New Zealand, though similar language was transposed, that was not the way it was read.”
(crossposted from CreativeFreedom.org.nz)
Chris Keall at the NBR reports that “Prime Minister John Key has announced that the government will throw out the controversial Section 92A of the Copyright Amendment Act and start again. Section 92A has been scrapped.”. This is fantastic news, and it’s great that Prime Minister John Key has taken a stand on this important issue. This draconian and naïve law was originally championed by former-MP Labour’s Judith Tizard. More news to come
(crossposted from CreativeFreedom.org.nz)
With only four days until the Guilt Upon Accusation law, Section 92A of the Copyright Act, is due to come into force the Creative Freedom Foundation (CFF) are highlighting statistics that paint a picture of what New Zealanders may face if the Government allows this law.
S92A was championed by former Labour MP Judith Tizard as a law that would cut off the internet of those “who might be breaking the law” without any due process – effectively removing New Zealander’s fundamental right to being presumed innocent until proven guilty. Prime Minister John Key has aptly called this law “draconian”.
International trends indicate that S92A may be misused. A University of Southern California report on US copyright infringement has found that businesses targeting competitors account for more than half (57%) of all claims. The same report shows that over one third (37%) of claims of copyright are invalid, pointing out the necessity of trained experts to judge disputes. Within New Zealand Judge David Harvey has commented that 30% of copyright litigation fails due to a failure to prove ownership of copyright, or due to the copyright in question not being governed by New Zealand law.
CFF Director Bronwyn Holloway-Smith says that “it’s likely that most organisations affected by S92A are unaware it affects them. Due to its broad definition of internet service provider (ISP), an ISP is now anyone with a shared internet connection or website” she says, “meaning that there are now hundreds of thousands of New Zealand businesses that will need to comply with this law. This will mean extra business compliances costs to avoid the risk of possible secondary copyright infringement”. ISPANZ estimate that 90% of NZ businesses use Network Address Translation (NAT) technology to connect their employees to the internet. Holloway-Smith says “Like most home phones, most NAT devices are incapable of tracking individual users, which is a practical necessity of S92A. NAT devices capable of tracking start at $1,500.”
Holloway-Smith says that disconnecting an employees’ internet is comparable disconnecting their phone line, which could result in a firing an employee now unable to do their job: “While inappropriate use of company services should result in dismissal there are obvious problems if the employer is unsure of the accuracy of evidence. Businesses required to comply with S92A may experience difficulties arising from enforcement measures that could conflict with employment law”. Holloway-Smith adds that “A recent OECD study into online crime has found that 25% of computers are infected with viruses that download and distribute material without the owners knowledge.”
In contrast, while hundreds of thousands of organisations may be affected by S92A the number of groups represented at the Telecommunications Carriers Forum’s (TCF) Copyright Working Party is approximately 35.
As of today 18,717 people, including 9,363 artists, have signed the CFF’s petition against S92A.
“While we appreciate that copyright holders want a streamlined system for punishing copyright infringement, these statistics show that infringement requires expert judgment and that these decisions should not be left to untrained ISPs.” says Holloway-Smith
ENDS
(crossposted from CreativeFreedom.org.nz)
We are now one week away from March 27th, the day when the Guilt Upon Accusation law Section 92A is due to come into effect. The CFF put out a press release today giving a quick history of how we got here, and in this newsletter we have information on what you can do today to help.
The decision on S92A may be made as soon as a cabinet meeting on Monday, so we’re asking you to write TODAY to the coalition politicians about this. It doesn’t need to be long, it can just be a few sentences and you might find some ideas here. As always please keep it polite and but firm, as it’s not only decent behaviour it’ll be more persuasive that way.
National: j.key@ministers.govt.nz ,s.power@ministers.govt.nz , c.finlayson@ministers.govt.nz , g.brownlee@ministers.govt.nz , s.joyce@ministers.govt.nz
And please send supportive emails urging the coalition partners speaking out against S92A to follow through
United Future: p.dunne@ministers.govt.nz
ACT: r.hide@ministers.govt.nz , h.roy@ministers.govt.nz
Also The Maori Party voted against it at the time: p.sharples@ministers.govt.nz
RECENT NEWS
* One Week Until Guilt Upon Accusation Law In NZ. With only seven days until the Guilt Upon Accusation law, Section 92A of the Copyright Act, is due to come into effect the Creative Freedom Foundation has renewed calls for National to repeal S92A and replace it with a workable alternative. Intended to protect artists, the controversial law has been rejected by a majority of them with over 9,000 artists, including Yulia, Glyn MacLean, Luke Buda (Phoenix Foundation), Luke Rowell (Disasteradio) and Imon Star (Olmecha Supreme), calling for a sensible alternative. Gray Bartlett MBE has stated that “The sledgehammer approach across the board, will totally dampen artistic and musical talent, most especially new and young talent”.
* Glyn MacLean speaks from experience as he’s built three multi-million dollar music retail/wholesale businesses and is the manager for multi platinum artist Yulia. He has written a guest post describing his experiences with music in New Zealand, how APRAs own disputes resolution process failed, as well speaking directly on the issue of Section 92A. Read on at http://creativefreedom.org.nz/story.html?id=226
* A Response to Roger Shepherds Article. Today’s Dominion Post published an opinion piece by Roger Shepherd about Section 92A. The article talks passionately about New Zealand music and then decides that S92A is the solution.
Thanks,
Creative Freedom Foundation
(crossposted from CreativeFreedom.org.nz)
Glyn MacLean speaks from experience as he’s built three multi-million dollar music retail/wholesale businesses and is the manager for multi platinum artist Yulia. He has written a guest post describing his experiences with music in New Zealand, how APRAs own disputes resolution process failed, as well speaking directly on the issue of Section 92A.
START
Authorised by Yulia (www.yulia.co.nz)
Written by Glyn MacLean (Manager for Yulia)
LEGISLATING PROFITS
One of the important points that has come up in respect of the proposed changes to section 92a of the copyright act is the disputes resolution process and who administers this.
I would like to point out by way of an example; APRA’s own administrative processes failing a respected and high achieving APRA member; Yulia.
It is our view that the APRA disputes resolution process is geared towards the complainant and not towards the rights holder and that this kind of policy is even more likely to fail the rights holders if it is administered by ISP’s.
“DISPUTES RESOLUTION PROCESS”
Yulia wrote a song called “Love Siege” which is also known as “Languages”. An ex boyfriend, who we will call MR X, who is a registered APRA member and who had previously registered songs with Yulia with APRA, decided that because he had recorded and performed on Yulia’s song that he had actually written the song. MR X wrote to APRA and told them that Yulia had wrongly advised them about her writing the song. (In other words he was saying Yulia lied – affecting her credibility) He stated that he should hold at least 50% of the rights in the song.
APRA has an automated response to such “copyright dispute” (or the alleged and so called infringement committed by Yulia). APRA advised Yulia that they would put the song into dispute. This means that Yulia, and her business partners who had invested some $15,000 in the song could not collect any payments or effectively trade on the song until the dispute about ownership is resolved. All of this of course occurred after the song was re recorded with an entirely new arrangement which included none of MR X’s performance or arrangement. Importantly, the song had started to get some notice overseas in UK market, moving up the Indie charts and winning a significant placing in major UK Songwriting competition.
Yulia provided APRA with scan of a CD on which was MR X own handwriting clearly stating “Song by Yulia”. APRA decided this was not adequate evidence and brushed Yulia, her management and her lawyer off telling us to take the matter to a third party for resolution. Importantly, APRA made the judgement that the evidence provided by Yulia was not credible but had put the song into dispute despite the fact that no evidence was presented by MR X other than the fact that he had previously written songs with Yulia. This astounded Yulia’s business partners and has diminished our confidence in APRA’s administrative systems and processes and our faith in Ant Healey to protect Yulia’s rights holding in NZ.
Yulia upholds the claim that she wrote the lyrics and the melody (whole song). She also states quite strongly that MR X is a disgruntled ex boyfriend who was trying to get back at her. Clearly thanks to APRA Mr X succeeded! APRA’s response was to force Yulia to have to take costly court action.
After discussion with NZ’s top intellectual property lawyer (at more cost) it was agreed that it would be more profitable to leave the song in dispute than to pay $300 an hour to resolve the dispute in court at our own unrecouped cost. APRA’s inadequate disputes resolution process indirectly cost the artist the financial loss of the song.
What happened here is that an inadequate APRA disputes resolution process allowed a disgruntled ex boyfriend to disrupt Yulia’s business income.
What this kind of administrative failure does is it leaves a loop hole in the system through which anti competitive persons could state that; simply because they have worked with an artist in the past, that they should have the benefit of the doubt in respect of rights holding in any future works, thereby allowing the complainant to put future works into dispute at the mere suggestion. This is obviously not in the Yulia’s interests but is wonderful for any competitor or future complainant.
CONFLICTS OF INTEREST AND FAILED OBJECTIVITY
One of the major problems with music industry is that it’s not what you know, it’s who you know. If you offend the “industry giants” then you do so at the risk of being “locked out of the industry”. There is rarely any amnesty for the whistle blower.
The moment a musician speaks up about RIANZ, APRA, MMF, NZ ON AIR that artist will be subject to an adverse emotionally charged response from the decision makers of industry, many of whom are pals and bossom buddies. Thus some remarkable NZ artists have been held back by this culture of silence and blocked opportunity in which even some Govt representatives have voiced adverse personal opinions that have affected commercial careers.
This kind of conflict of interest has to to stop.
INDUSTRY PERSONNEL
Thus I would like to raise the point of who is contributing to the policy which would be administered.
If we were to “stock take” the leadership of the Recording Industry Association of NZ
and the Australasian Performing Rights Association we would find some interesting facts.
WE ARE AUSTRALIAN!
First of all, APRA is based out of Australia. That’s why it is called the Australasian Performing Rights Association. While some would argue that APRA is very “Kiwi” I would suggest that what we define as Kiwi is more influenced by transnational corporations and here is why;
The staff of transnational corporations runs NZ music industry.
Years ago independent radio stations were bought out by two competing radio networks: Radio Works and The Radio Network. Both of these corporations are owned by transnational corporations and return profits to Dallas, USA and Canada. Only two program directors work with two NZ On Air staff to determine which NZ artists are placed on NZ radio.
The public knows very little about the actual mechanics of commercial music and the fact that it is not the least bit democratic. Decisions are in fact made based on advertising demographics.
Within APRA and RIANZ we also find that the leadership has both historically (and continues to be) largely lead by persons who hold rank within transnational corporations. You must understand that a manager within a company is legally obliged to ensure a return of profits to the shareholders of that transnational corporation and they must (according to their employment contract) at all times uphold the interests of that employer. Therefore the NZ Govt has over a period of two decades allowed record labels whose interests are defined by private transnational corporate profits to determine the future of NZ music industry.
The decision makers represent companies that traditionally exploit artists to the extent that few NZ artists have seen financial success despite high achievements – the artists have been too afraid to speak about it; the high level of exploitation.
A massive proportion of the NZ tax payer dollar goes to transnational corporations which exploit NZ artists. Major record labels have the system stitched up. They coordinate their infrastructure to ensure that they comply with funding criteria and then use NZ tax payer dollars to fund NZ artists. In many cases those record deals have been so geared towards the profits of the transnational corporation that the artist has ended up on the dole in NZ. I would love to see some facts pertaining to the artists who were flat broke after the huge financial success of the record label.
In the case of Yulia, she received in sum total approximately only 3% of the total revenue of her her albums. She has to pay for all of the costs of the making of her albums while SONY maintains the actual ownership and control of her albums. She signed as an 18 year old without much support or information and was only ever given a short form (loose) agreement which did little to protect her interests. Yulia’s achievements include 3 radio hits, two number one hit albums and six times platinum sales. Despite demand for her albums worldwide SONY has failed to support Yulia’s dream of making her albums available overseas. This is not abnormal in the music industry. The same kind of thing happened to George Michael who fought back over a period of years and then released his amazing album “Faith”. Sony have offered us the opportunity to buy back Yulia’s master recordings so that she can once and for all begin marketing herself overseas. Sony will only allow Yulia to license with “authorised” SONY agents in any territory and despite interest from many music publishers and distributors Yulia is “stuck” and unable to move forward with a body of work that is amongst some of the most highly respected work ever created in NZ. This is entirely legal but it’s obviously very unfair. Is this the experience we want artists to continue to have in NZ?
Suffice to say there is much misinformation in the game of big (music) business. The incumbent leadership wants the NZ public to believe what ever they tell them. Because they hold positions of authority, the information they provide should have integrity. I would like to suggest this; that there is an alternate truth out there amongst NZ musicians that have been systemically exploited to the detriment of NZ music industry. This begs the question, “Why are we allowing these people make decisions about the future of NZ music?”
NEGATIVE FOCUS
In my short time on earth I have built three multi-million dollar music retail or wholesale businesses for other people. I know a thing or two about adding value to the consumer and making profit. My point here is that the music industry is trying to legislate profits rather than to accept responsibility for investing in a new business model which would benefit all of the stakeholders; the consumer, the retailer, the distributor, the manufacturer and the inventor. Consumers are voting with their wallets and the industry doesn’t like it. It only costs $2 to manufacture a CD and yet CDs had been in NZ for up to $35 with most of the profit not going to the inventor (songwriter/artist).
NZ Govt needs to invest in innovating new ideas for commerce and working with NZ owned and operated business such as those who are members of Independent Music NZ (IMNZ). We need to stop funding transnational corporations and overseas shareholders and start funding NZ music enterprise for overseas export. An example of the problems with the current system are that we have people like Kylie Harris (Country Music) completely unrecognised in NZ with Country Music completely unsupported despite it’s massive commercial success worldwide. We’ve done nothing in NZ to dispel the abject horror at the use of the words “Country Music” despite the fact that names like Jewel, Shania Twain and Taylor Swift are household names here in NZ. Similarly NZ has some of the worlds leading classical crossover and folk singers, the industry does very little to support much outside grunge guitar or urban music and that’s because everyone in the industry thinks “Band”.
The whole point of this blog is to expose you to the idea that the people leading the development of legislation in NZ do not necessarily have the artists best interests at heart.
Neither do they necessarily possess the acumen with which to establish the future direction of the music industry. Do you go to Warners Music whose shareholding value has declined almost 70% in the last year or to ex Virgin staff whose stores have shut down all around North America for advice? Or do you go to ReverbNation.com, Amplifer.co.nz, txttunes.com, aimestreet.com, Lastfm.com, iLike.com, and facebook.com who are all growing at a fantastic rate through cross marketing and licensing and distribution agreements between each other?
The future of the NZ music industry will not be maintained through legislating profits.
It will be maintained by adding fair value to ALL the stakeholders that contribute to the process and by adding real value to consumers.
Glyn MacLean
Manager
YULIA
“Voice of rare Beauty”
www.yulia.co.nz
ALMS ELECTRONICA
“Music with a Conscience”
www.almselectronica.co.nz
(crossposted from CreativeFreedom.org.nz)
Today’s Dominion Post published an opinion piece by Roger Shepherd about Section 92A. The article talks passionately about New Zealand music and then decides that S92A is the solution.
Firstly, Roger Shepherd evidently cares passionately about New Zealand music and this should be applauded.
There is not however any description of Section 92A — other than that it relates to copyright infringement online — within the article. The practical issues around enforcement of data forensics and copyright law are also not talked about.
As you will see the Mr Shepherds article is a blunt response to a subtle issue and it misrepresents many of the arguments,
In the current argument over Section 92 of the Copyright Act, several issues have been ignored or distorted. It seems to have been forgotten that downloading music or film without paying for it is stealing.
No one has forgotten that, and no one is seriously saying that this is not copyright infringement. Mr Shepherd appears to be arguing a black and white case – that you are either for this law, or believe in stealing. This stance is both ill-informed and absurd.
S92A requires ISPs to act upon accusations of copyright infringement and to punish with internet disconnection before a trial and before the evidence has been held up to court scrutiny.
There are workable alternatives to S92A that provide justice for artists, justice for the accused, and a copyright system that is worthy of public respect. Although perhaps noble in it’s intent S92A is corrosive to the public trust in copyright education that the artists benefit from, and it risks undoing the social contract that underlies copyright; encouraging illegal downloads and taking money away from the creative sector.
Those experienced in dealing with copyright infringement accusations have recently announced some statistics from Google,
GOOGLE STATISTICS
the rights holders insist that their evidence is waterproof and will hold up in court, even though they don’t want to go to court with it.Is that so? Not according to Google, which has produced statistics showing that 57% of takedown notices received under the US Digital Millennium Copyright Act (DMCA) were sent by businesses targeting competitors. Invalid claims made up 37% of the total DMCA notices.
With those sort of figures, and [New Zealands] Judge Harvey pointing out that 30% of all copyright lawsuits fail because ownership cannot be proven, there’s no way we can trust “rights holders” to adjudicate infringements.
(source: ComputerWorld)
CFF agrees that copyright infringement is something that needs to be illegal in the eyes of the law, and that this is as Roger Shepherd says a sign an a civilised society, however S92A falls well short of being an effective law that targets guilty offenders.
These laws have also been used maliciously by disgruntled employees, by businesses against competitors, and by those seeking to restrict critical commentary and free speech resulting in harm to basic public rights.
When France proposed a similar directive based on presumptive guilt it was struck down in the European Parliament as being against “a fair balance between the various fundamental rights”
We need good copyright law but this is not it.
An APRA member, Anthony Milas, says: “This law is poorly written and poorly thought-out in such ways that could lead to abuse of the basic human rights of ordinary individuals. If anything the public backlash sure to result from such a situation will make it even more difficult to educate the public and convince lawmakers of the necessity of sensible laws to protect creators rights.”
Roger Shepherd ends his article without demonstrating an understanding of S92A and yet wishing it to be forced upon the New Zealand public,
It is not the whole answer, but at least we get to tip things back towards the artist and his interests. Let’s get on and implement it and remove the doubt and confusion that currently exist. If there are faults or problems with the process, they can be ironed out as it develops.
There are faults and problems, and here are ten of them…
Ten Problems with Section 92A
1. No Independent Qualified Adjudicator: There’s no currently qualified or trusted independent 3rd party to judge (1) data forensics and (2) copyright law, so decisions must be based either on allegation or prosecution. Our positive solution to this is an extension in jurisdiction to the underutilised Copyright Tribunal (who currently handle only licensing disputes, of approximately one per year).
2. Unclear Legislation: People don’t know how to obey the law because it’s poorly drafted and vague. The heavyweight TCF policy was written by and for conventional ISPs and it is inappropriate for the majority of “ISPs” under the new broad definition that includes libraries, schools, businesses, many homes, hotels, etc.
3. Innocent People Framed: People can be easily framed for copyright infringement online, see http://dmca.cs.washington.edu/ . There are hundreds of Data Forensics experts in NZ that can tell the difference but expecting thousands of untrained businesses to do the same is impractical and ridiculous.
4. Impractical and Technically Unrealistic Demands: Tens of thousands of internet devices in New Zealand are incapable of storing who accessed what, at what time, making corroborating accusations impossible. It would be like expecting, come March 27th, for all New Zealanders to be able to track who used a phone within a household or a business. Most phones just don’t have that capability, and most network devices don’t have that capability. Accurately tracking copyright infringement is a noble goal to head towards but we’re not there yet and therefore S92A is unrealistic and impractical. Government could amend the definition of an “ISP” to be instead a “CSP” (commercial service provider) which would reduce the scope to conventional ISPs like Xtra and Vodafone who are capable of tracking. They could then increase the scope of an “ISP” as internet hardware improves. In the meantime people can still be taken to court as they always could to resolve disputes (or possibly a Copyright Tribunal if that’s established).
5. Business Compliance Costs: The business compliance costs of tracking (a practical necessity to corroborate future accusations) both in terms of buying tens of thousands of new hardware devices for the businesses now deemed “ISPs” have not been factored. Consumer-grade internet hardware devices capable of doing this cost approximately 0. We have been doing research on this and we may have some results early next week. It’ll certainly be tens of thousands of “ISPs” who need to spend that kind of money… and then you need data forensics and copyright law knowledge to use that tracked information.
6. A Disproportionate Punishment: Internet disconnection is a disproportionate
punishment that hasn’t been enforced by the courts in the past, even in extreme cases of copyright infringement (repeat commercial infringers as judged in a court didn’t get this punishment). Fines would be more appropriate and would protect businesses and home users. Music Industry studies suggesting people prefer internet disconnection to fines did not consult businesses or organisations (many of whom depend on the internet as much as a phone line). Further, the law doesn’t distinguish between a copyright infringement such as a thirteen year old’s self-written Harry Potter story (which if it uses the Harry Potter characters is copyright infringement) Vs. distributing thousands of movies illegally. Allowing fines would allow appropriate punishment.
7. Harms Respect For Copyright And Artists: Although perhaps noble in it’s intent this law is corrosive to the public trust in copyright education that artists benefit from, and it risks undoing the social contract that underlies copyright; encouraging illegal downloads and taking money away from the creative sector. As artists we’re being very clear to distance ourselves from those companies pushing for this law so that the public know who is responsible for future injustices. On the issue of S92A we represent 9037 artists, out of 18,146 people (and 90% of these are New Zealanders).
8. Business Risk: ISPs choose disconnection or connection under threat of being secondary copyright infringers themselves, or wrongfully terminating a customers contract. This is an unreasonable burden to place on thousands of businesses who are now deemed “ISPs”. Thousands of untrained people cannot be experts at data forensics and copyright law.
9. Business Risk From Employees: For many businesses disconnecting a staff members internet may be like removing their phone line, effectively firing the employee. While inappropriate use of company services should result in dismissal there are obvious problems if the employer is unsure of the evidence, and associated risks in employment law.
10. Reverses the presumption of Innocence: S92A calls for punishment with internet disconnect without due process and without evidence judged by experts. The “courts” under S92A policies are thousands of untrained “ISPs” and they operate under the threat of either 1) being secondary copyright infringers themselves if they make a wrong decision on copyright or data forensics, or 2) contract or employment problems of disconnecting people without really knowing if anything wrong was actually done. Businesses are risk averse, and untrained people may decide on who is the bigger risk to them — the accuser or the accused. In practice the accused doesn’t get anything resembling due process and it’s our opinion that most people will be considered guilty upon accusation.
(crossposted from CreativeFreedom.org.nz)
FOR IMMEDIATE RELEASE
With only seven days until the Guilt Upon Accusation law, Section 92A of the Copyright Act, is due to come into effect the Creative Freedom Foundation has renewed calls for National to repeal S92A and replace it with a workable alternative. Intended to protect artists, the controversial law has been rejected by a majority of them with over 9,000 artists, including Yulia, Glyn MacLean, Luke Buda (Phoenix Foundation), Luke Rowell (Disasteradio) and Imon Star (Olmecha Supreme), calling for a sensible alternative. Gray Bartlett MBE has stated that “The sledgehammer approach across the board, will totally dampen artistic and musical talent, most especially new and young talent”.
Former chair of the Copyright Tribunal Judge Harvey has said S92A is “an interference with economic relations and raises significant issues about the sanctity of contract” and “My view is that s 92A should be repealed”.
Prime Minister John Key has aptly called S92A “draconian” and “poorly drafted” while also speculating that, without practical and workable guidelines, internet providers may instead be “cutting people off left, right and centre, that’s the issue, or [they may] get sued by the copyright people for their enforcement.” Creative Freedom Foundation Co-Founder Matthew Holloway agrees, adding that “practical enforcement of S92A will require training in data forensics and copyright law, and yet you will find no requirement for these in the law or the draft Code to ensure a fair process for New Zealanders.”
Former-MP Labour’s Judith Tizard, who championed Section 92A, has defended it while also saying that it was designed to cut off “anyone who might be breaking the law.”
While similar laws were rejected and replaced with alternatives in the UK, Germany, and the EU, many analysts say that New Zealand is a lab rat for this kind of law. Speaking of S92A, Bill Thompson from The Guardian UK comments that “The content industry are looking for a compliant government that will do what they want, and then if it seems to work they can push that forward as a model to everyone else.”
Holloway further states “S92A has a one-size-fits-all penalty of internet disconnection – so copyright infringement by quoting too much text or downloading thousands of movies receive the same punishment. This law does not allow the discretion to make the punishment to fit the crime”
Creative Freedom Foundation Director Bronwyn Holloway-Smith says “We have seen lawyers, technologists, and thousands of artists saying why the law is naïve and impractical. We have seen a Select Committee listening to the public but having its conclusions ignored by the previous government. We have seen an Internet Blackout campaign draw global attention to this law, and now we are now watching two non-government groups privately deciding the future of this law. This is nonsense – it’s time to get rid of Section 92A. There are viable alternatives ready to replace it that will preserve New Zealander’s fundamental rights to due process, while also providing justice for copyright holders.”
Suggestions for alternatives advocated by the CFF are to reduce ISP scope to those capable of enforcement, changing to the internationally popular ‘notice-and-notice’ model, and establishing an affordable independent copyright tribunal for due process in any dispute.
CFF call on the Minister responsible, Hon Simon Power s.power@ministers.govt.nz , to fix the law.
ENDS
ABOUT THE CREATIVE FREEDOM FOUNDATION
The Creative Freedom Foundation was founded in 2008 by artists and technologists Bronwyn Holloway-Smith and Matthew Holloway in response to changes in copyright law and the effect these changes are having on creativity, the economy, and public rights. The CFF represent thousands of New Zealand artists including musicians, film makers, visual artists, designers, writers, & performers.
The Foundation’s primary goals are:
* The education of New Zealand artists about emerging issues within New Zealand that have the potential to influence their collective creativity
* Advocacy to ensure that their views are taken into consideration, and
* The promotion and encouragement of activities that support and build the New Zealand arts community, positive relationships within that community and/or the positive wellbeing of that community.
The Creative Freedom Foundation views the internet as an opportunity for artists in New Zealand, not a threat and, through their goals, they seek to bring Copyright Law into the 21st Century.
MEDIA ENQUIRIES
For more information please contact:
Matthew Holloway
Co-Founder, Creative Freedom Foundation
cff@holloway.co.nz
(+ 64) 021 0296 3595
(crossposted from CreativeFreedom.org.nz)
Since late December the Creative Freedom Foundation have been advocating alternatives to Section 92A such as an independent adjudicator, a Copyright Tribunal, to resolve disputes. We also need to make the punishment to fit the crime, rather than the one-size-fits-all punishment of internet disconnection in S92A. Our suggested alternatives are discussed inside…
We have 3 goals for March 27th that’ll involve repealing or permanently suspending S92A. This means continuing to educate the government and others about the problems with the law:
GOAL 1. Establish An Independent Adjudicator:
The jurisdiction of the existing Copyright Tribunal should be changed so that we have qualified people judging cases of copyright infringement. The new Copyright Tribunal could have a range of sanctions, primarily fines but also disconnection. This also works around the problem that the law doesn’t distinguish between a copyright infringement of a thirteen year old’s self-written Harry Potter story (which could be considered a derivative work) versus distributing thousands of movies illegally — it allows the punishment to fit the crime. In practice the new Copyright Tribunal will need new data forensics skills.
GOAL 2: Reduce Classification of an “ISP” to those capable of enforcing tracking
This will immediately reduce the scope of ISP to those who can implement the logging necessary to corroborate any future evidence of copyright infringement. An appropriate analogy might be that most residential and small/medium businesses have phones that can’t track individual users, and similarly most cheap NAT network devices are incapable of logging connection data for 6 months to build up the data necessary to corroborate evidence. In practice this means immediately reducing the scope of S92A to conventional commercial ISPs. This then puts the onus on Government to increase capability of enforcing the law (Eg. to phase in restrictions that new hardware sold in NZ that is capable of logging user traffic and reasses the scope of “ISP” after that).
GOAL 3. Change to a Notice-And-Notice model, rather than Notice-And-Takedown
Internet disconnection is a disproportionate remedy for the complainant that has been rarely chosen by the courts, even in extreme cases of copyright infringement. Fines backed by a Copyright Tribunal to resolve disputes would be more appropriate. Music Industry studies suggesting people prefer internet disconnection to fines did not consult businesses (many of whom depend on the internet as much as a phone line).
That’s a brief summary but we’ve been working with lawyers on translating these 3 ideas into legalese in order to try and reach cross-party agreement.
You can find more information about the alternatives and problems with S92A half-way down the What About Us? page.
Enjoy!
