Copyright (Internet Service Provider Account Termination Policy) Amendment Bill
Members Bill
Explanatory note

General policy statement

The Copyright (New Technologies) Amendment Act 2008 Commencement Order (No 2) 2008 brings into effect section 92A of the Copyright Act 1994 on the 28th February 2009. This states:

“Internet service provider liability
“92A Internet service provider must have policy for terminating accounts of repeat infringers
“(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.
“(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

There is concern a week out from the date of enactment that this may have effects beyond those intended by the drafters of this section. It was hoped that in the lengthy period between the passage of the Bill and the enactment date that ISPs would develop policies, which would clarify how the provision would operate in practice.

This has not been successful and while a draft code of practice for the industry has been developed in consultation with copyright holders and ISPs there are significant sticking points.
This has resulted in considerable public uncertainty and confusion about the meaning of the law.

The law is due to come into effect on 28 Feb. More time is required for the affected parties to negotiate the issues and reach agreement on a workable code that upholds the principles of protection of copyright and does not place an onerous burden on the internet service providers.

We considered a variety of measures including delaying the enactment of the clause, however it is better to state the appropriate mechanism for resolving the issue. This Bill therefore amends section 92A to include the following clause:

“(3) A policy as required by subsection (1) must be in accordance with guidelines developed by industry groupings representing the interests of telecommunications carriers and rights holders and agreed by the responsible Minister.

The wider issue of the future of copyright law in a digital age is complex and fast changing. In order for the Section 92A to be effective, a workable code of practice between the rights holders and the internet service providers must be achieved.

This amendment is in keeping with the objective of the Act which is to ensure a robust intellectual property rights system for the continuing growth of New Zealand’s creative and innovative sectors.

Clause by clause analysis

This Bill amends the Copyright (New Technologies) Amendment Act 2008.

Clause 1 states the Bill’s title.
Clause 2 states the Bill’s commencement.
Clause 3 states the Bill's purpose, which is to clarify the policy making process for Internet Service Providers to terminate accounts.
Clause 4 amends section 53of the Copyright (New Technologies) Amendment Act 2008 to provide a new subsection that requires ISP policies on account termination for copyright infringement to be in accordance with guidelines developed by industry groupings representing the interests of telecommunications carriers and rights holders and agreed by the responsible Minister.

Clare Curran
Copyright (Internet Service Provider Account Termination Policy) Amendment Bill
Members Bill
Contents
1 Title
2 Commencement
3 Principal Act amended
4 Purpose
5 Internet service provider liability

________________________________________
The Parliament of New Zealand enacts as follows:

1 Title
This Act is the Copyright (Internet Service Provider Account Termination Policy) Amendment Bill Act 2009.

2 Commencement
This Act comes into force on the day after it receives Royal Assent.

3 Principal Act amended
This Act amends the Copyright Act 1994.

4 Purpose
The purpose of this Act is to provide a framework for internet service providers to develop and implement policies on account termination for copyright infringement under section 92A of the Act.
5 Internet service provider must have policy for terminating accounts of repeat infringers
Section 92A is amended by adding the following subsection:

“(3) A policy as required by subsection (1) must be in accordance with guidelines developed by industry groupings representing the interests of telecommunications carriers and rights holders and agreed by the responsible Minister.”

ENDS

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