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Cablegate: Update On Nz Copyright Law Section 92a -

VZCZCXRO4922
RR RUEHAG RUEHCHI RUEHDF RUEHFK RUEHHM RUEHIK RUEHKSO RUEHLZ RUEHNAG
RUEHPB RUEHRN RUEHROV RUEHSR
DE RUEHWL #0115/01 1342340
ZNR UUUUU ZZH
R 142340Z MAY 09
FM AMEMBASSY WELLINGTON
TO RUEHC/SECSTATE WASHDC 5862
INFO RUEHNZ/AMCONSUL AUCKLAND 1966
RUEHBY/AMEMBASSY CANBERRA 5513
RUEHDN/AMCONSUL SYDNEY 0844
RHHMUNA/CDR USPACOM HONOLULU HI
RUEHZU/ASIAN PACIFIC ECONOMIC COOPERATION
RUEHSS/OECD POSTS COLLECTIVE
RUCPDOC/USDOC WASHDC 0303
RUEATRS/DEPT OF TREASURY WASHDC
RUEHRC/DEPT OF AGRICULTURE WASHDC
RUCNMEM/EU MEMBER STATES COLLECTIVE

UNCLAS SECTION 01 OF 02 WELLINGTON 000115

SENSITIVE
SIPDIS

STATE PASS TO USPTO, U.S COPYRIGHT OFFICE, USTR
JARED RAGLAND, COMMERCE FOR ITA/MAC/OIPR, JGOLDBERG,
STATE FOR EAP/ANP, EEB/TPP/IPE

E.O. 12958: N/A
TAGS: ECON ETRD KIPR NZ
SUBJECT: UPDATE ON NZ COPYRIGHT LAW SECTION 92A -
INTERNET SERVICE PROVIDER RESPONSIBILITIES.

Ref: WELLINGTON 88

WELLINGTON 00000115 001.2 OF 002


1. (SBU) Summary: On May 12, New Zealand's
Minister of Commerce Simon Power met with
representatives of the NZ copyright industry and GNZ
officials to discuss a three-step plan to re-draft
and enact section 92A of the Copyright (New
Technologies) Act by end of 2009. This particular
section of the copyright law deals with provisions
to terminate repeat copyright infringers who use the
internet to illegally download copyrighted material.
The GNZ plan looks to be well thought out and with
the assistance of a panel comprised of five of NZ's
leading intellectual property experts, the re-
drafted provision looks positioned to avoid the
earlier pitfalls and criticism of poor
draftsmanship. End Summary.

Background
----------

2. (SBU) New Zealand's Minister of Commerce Simon
Power suspended section 92A (S92A) of the new
copyright law from going into force as originally
planned on March 23. He took this action because
negotiators from both the intellectual property
rights (IPR) industry and the Telecommunications
Carrier Forum (TCF) reached an impasse and were
unable to conclude a final code of conduct by the
March 23 deadline. This provision of the copyright
law (section 92A) would have created new enforcement
provisions in the law for terminating the internet
service accounts of repeat copyright infringers
(i.e., the illegal downloading of copyrighted
material over the internet). Since February 28,
2009, all other provisions of the new Copyright (New
Technologies) Amendment Act of 2008 are in full
force. See Reftel for full background details.

3. (SBU) Econoff learned from Tony Eaton of the NZ
Motion Picture Association (MPA) that Minister Power
met on May 12 with Eaton, Campbell Smith, CEO of the
Recording Industry of NZ (RIANZ), Brett Cottle, CEO
Australian Performing Rights Association NZ and
lawyers from the Copyright Division of the Ministry
of Economic Development (MED) to discuss Power's
three-step plan to re-draft and enact section 92A by
end of 2009.

The Three-Step Plan
-------------------

4. (SBU) Step one will consist of assembling a
panel of five leading intellectual property law
experts charged with re-drafting S92A. The panel
has a July 2009 deadline to submit its version to
the Copyright Division of MED for review and
approval. The panel will consist of:
--Judge David Harvey, previous Chair of NZ Copyright
Tribunal,
--Susan Frankel, current Chair of NZ Copyright
Tribunal,
--Paul Sumpter, member of Copyright Tribunal and
Professor of law at University of Auckland,
--Clive Elliot, Auckland attorney, IPR expert and
author of legal texts on patents and copyright
issues,
--Andrew Brown QC, Auckland attorney and expert on
IPR, former partner in the Russell McVeagh law firm.

5. (SBU) Step two will be a consultative period
among MED, the IPR rights holders and the NZ
telecommunication firms (i.e., the NZ internet
service providers - ISPs) to be concluded no later
than September 2009. Minister Power has made it
clear to all parties involved in the process that
the initial voluntary code of practice hammered out

WELLINGTON 00000115 002.2 OF 002


between the IPR community and the telecommunication
industry will remain as a foundation in the current
process and will not be rolled-back or renegotiated.
As for the earlier March 23 deadline, both
industries had reached agreement on most provision
of their proposed code but remained deadlocked on
two "minor" items:
--how to deal with fees (costs imposed on IPR rights
holder for submitting termination requests to ISP)
and
--length of time needed to process termination (time
between notice of infraction and final cancellation
of internet service of violator-one versus two month
lead-time).

6. (SBU) Step three will be the legislative period
where the newly revised section 92A moves to the
Parliament's Select Committee for public notice and
comment. Minister Power wants the law to proceed
through this period and be enacted and in force by
end of December 2009. In the meantime, the IPR
community has engaged the services of Price
Waterhouse consultants to do a cost-benefit analysis
on the potential losses to the NZ economy if the new
S92A fails to be enacted. The IPR industry wants to
be prepared to counter any false claims by opponents
of the new provision who successfully managed to
monopolize the local media's attention in the last
round.

Comment
-------

7. (SBU) Minister Power has made it clear to MED
officials and to industry reps that the GNZ has no
intention of going back on its commitment to
strengthen NZ's copyright regime. He expressed
privately that he wants to avoid some of the
hysterical public reaction that accompanied the last
attempt to revise S92A. His plan looks to be well
thought out and with the input from a panel of top
IPR experts the new provision will avoid the earlier
criticism of poor draftsmanship. The Embassy in the
meantime has repeated its offer of assistance to GNZ
officials to offer consultations with USG copyright
experts through a DVC. End Comment.

KEEGAN

© Scoop Media

 
 
 
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