#Blackout and the story of s92a in New Zealand

I thought I’d just draw your attention to a copyright law issue that has been live in NZ and which might be of interest. This is the very abbreviated story so feel free to ask more. It is of interest to anyone who cares about how civil society might fight back against campaigns by some interests to restrict access to an open and uncaptured Internet. (Similar to HADOPI in France.)

In 2008 the NZ govt passed a law that included a new section (92A) of the Copyright Act 1994. The provision said:

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.

This piece of law was originally due to come into effect in October 08 but was deferred twice, and after a large civil society campaign, was suspended indefinitely in March 09.

The flaws are probably obvious - there is no definition of “repeat”, there is no clarity about reasonable circumstances, the definition of ISP covered any organisation or person that provided Internet connectivity to anyone (so included libraries etc etc), it did not create a safe harbour for ISPs, it did not require any decision by a judicial authority that someone was an infringer…. etc.

The campaign was really taking off in February this year with the tag #blackout and #s92a, and was organised by the Creative Freedom Foundation (www.creativefreedom.org.nz) and a group of geeks and technology people meeting at a conference called the FOO Camp (google will help).

This campaign saw people turning their Twitter and Facebook avatars plain black, and said that it would not be fair to have a copyright law that let people’s internet accounts be cancelled on an allegation or series of allegations from rights holders. It achieved mainstream media profile in NZ after Stephen Fry, the English comedian and actor, noticed it and made his avatar black on twitter (with his 300,000 followers).

The new government, which was only elected in November last year, suspended the Act and is now reviewing it. The new proposal came out a week or two ago (you can find it at www.med.govt.nz), and so far still will probably allow for termination, but improves many other issues.

I think the lessons of this, as with the HADOPI law in France, are that community pressure when organised can help prevent attempts by some economic interests to change the balance of copyright law away from citizens and towards the interests of some content producers.

We do need much more collaboration, though, because all over the world, the representatives of content producers are trying to get laws in place that will lead to disconnection of users who are alleged to infringe copyright.

Given the importance of the Internet (including the idea some people have that access to it should begin to be seen as a utility like water and power, or almost as a human right), disconnection in the situation of non-commercial infringement is totally unacceptable. But the rights holders have lots of money and lots of influence with governments, and their campaign will not be easily stopped.

Anyway, just a few thoughts. You can find out more by talking to me, or email me at .(JavaScript must be enabled to view this email address).

Jordan Carter
Tuesday 21 July 2009