l@w.geek.nz: Copyright law crashes at last hurdle

Until April this year, the Powers that be were doing a good job consulting on the replacement for the infamous three strikes s92A of the Copyright Act - several detailed rounds of consultation and a Bill that, whilst still flawed, did attempt to cure some of the worst excesses.

But it all started to go awry in April.

First off, seemingly because the Government had invoked urgency to debate Christchurch earthquake emergency legislation but wasn't ready in the afternoon when urgency commenced, the Copyright (Infringing File Sharing) Amendment Bill was plucked from the Parliamentary order paper. "Let's fill up the time with that" they obviously thought. "It's had a right going over so no-one is going to complain that they're being caught by surprise - we don't want a repeat of the s92A SOP debacle now do we". After 2 years of careful deliberation, the Bill was passed under urgency and we had the Copyright (Infringing File Sharing) Amendment Act 2011 on the books in a few hours.

Oh dear.

I'm not saying a more considered debate would have made any difference, but the sight of MPs who had no knowledge of the legislation, let alone of the internet they were trying to regulate (Skynet anyone?!), was terribly embarrassing. Not only for the MPs themselves, but for New Zealand, as we were watched by international participants in this worldwide copyright debate.

Next up, Ministry of Economic Development (MED), for some unknown reason, changed its previously open and transparent approach of publishing all submissions, when it came to the consultation on the regulations. We are still waiting for their release, 6 weeks after they were submitted. These are the critical regulations which are going to decide how the regime actually works in practice by setting out (hopefully) the content which rights owners must include in their notices and the payment they must make to an ISP (IPAP as defined in the Act) to ensure that the ISP's costs of running the regime are covered. They will also deal with how a rights owner's notice may be challenged by an account holder and the method of calculation of Copyright Tribunal awards where the Tribunal finds an account holder has infringed.

Without the regulations it's a logistical nightmare:

• rights owner organisations say they are unable to decide how many notices they are likely to send to ISPs (NZFACT has said that it detects over 200,000 alleged infringements per month).

• ISPs cannot conduct any cost benefit analysis to decide what if anything they can automate vs deal with manually. They cannot even decide what resources overall they will need - do they employ one person to handle notice procesing or 3, or 6? What about call centres? Traffic will depend on how many notices their customers receive which in turn is dependent on rights owners (see bullet one above).

• ISPs can't change or create rules and processes that may need alteration to govern their relationships with their customers.

• business and organisational account holders who may need to change internal policies, business terms of use and even the way they operate are left in the dark.

• the expressed desire to use the regime to educate people is thwarted because educational efforts cannot start in anything other than a very general way.

But at least MED has consulted on their regulations. Another important piece of the regime, which will deal with how the Copyright Tribunal operates in terms of evidence rules, procedures and filing fees, is nowhere to be seen. This is being handled by Ministry of Justice rather than MED and we've heard nothing at all from them.

ISPs have repeatedly said that they need about 6-12 months to gear up for this regime. When the Bill was introduced last year that was what it envisaged. But, here we now are, less than 8 weeks out from the 1 September go live date and I don't expect we'll see MED's regulations before the end of this month (I understand the policy paper underpinning the regulations is before Cabinet now but they'll then need time for the regulations to be drafted, approved and Gazetted).

I'm not blaming MED - they are clearly overburdened with this, TPPA and other matters.

What I do think is that the Minister, Simon Power, should recommend to Parliament that the commencement date be delayed.

The law has its defects. But it will be a terrible irony if, on top of that, it's premature introduction creates chaos and further damages respect for copyright in the process. After all there is a very fitting precedent for last minute changes. Section 92A, which started all this off, was introduced by SOP only a week before the previous Act was passed.

Let's do the logical thing and delay so that we can sort out these crucial logistical requirements. Let's not crash at the last hurdle.

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