Positive Alternatives to Section 92A
(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. Begin The Process To Establish An Independent Adjudicator
- GOAL 2. Reduce ISP Scope to those capable of enforcing tracking
- GOAL 3. Change to a Notice-And-Notice model, rather than Notice-And-Takedown
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!
