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  Home . Content Library . Articles . Section 92A on hold

Section 92A on hold


When the Copyright (New Technologies) Amendment Act became law in October last year, who would have thought that one small paragraph, dealing with internet service provider liability, would generate such controversy? The ill-fated section 92A required ISPs to adopt and reasonably implement a policy providing for termination, in appropriate circumstances, of the internet accounts of people who repeatedly infringe copyright.

Section 92A did not come into force with the rest of the Act. Implementation was delayed until the end of February 2009, to give interested parties time to develop a suitable policy. In February, introduction of the provision was further postponed until 27 March by the new National government, whilst ISPs and others worked towards a suitable Code of Practice.

Meanwhile, public concern about section 92A grew, fuelled by misguided and sensational publicity. It was labelled “guilt upon accusation law”, a threat to basic human rights, punishing internet users without due process or evidence of wrong- doing.

On March 23, Commerce Minister Simon Power announced that section 92A would not come into force as scheduled, but will be reviewed and amended to address areas of concern.

At least two important points got lost in the section 92 ballyhoo. First, the fundamental basic rights and protections afforded to all copyright holders under our law ― and the law’s underlying rationale. Second, the actual wording of the section.

Copyright provides an incentive for writers, artists, musicians and others to create. It achieves this by giving owners certain exclusive rights over their works, most importantly, the right to reproduce all or part of a work in material form for a period of time. The rights are not unlimited. There are a range of “fair dealing” and other exceptions available to copyright users. By ensuring that copyright material can be reasonably protected, the law enables owners to make a living from their endeavours. As a result, they will continue to invest time, talent and capital into creating works and distributing them. This cycle of reward and creativity encourages innovation and the proliferation of new works for the benefit of the whole community.

Of course, not all creators want to make money from their work. They have a choice to simply place a statement on their work, clearing it for use by others and adding any conditions they deem fit.

ISPs are in a unique position to inform and educate the public about copyright, thus reducing ignorance and apathy towards it. The wording in section 92A (although perhaps not as concise as it could be), anticipates a proportionate approach to be taken by ISPs against copyright infringement. It requires a policy that is reasonably implemented, to provide in appropriate circumstances, for the termination of internet accounts of repeat infringers. A suitable section 92A policy would demand strong evidence of repeated copyright infringement ― of a standard acceptable in court, protections to guard against breaches of privacy, appropriate education notices, warnings and an independent adjudicator to preside over disputes. Repeated copyright infringement is a serious matter, not to be shrugged off. Internet disconnection, as a “last resort”, is not an unreasonable response.

The Internet is central to our everyday lives ― work and play. Professional creators want their works made available to the widest possible audiences, but they are entitled to have a say over how, when and under what conditions. If we allow the Internet to be a lawless territory, copyright owners and the public will suffer. We need a credible, revised section 92A that sends the right message about copyright.

Carmen Vietri

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