Judith Tizard, architect of section 92a of the Copyright Act, says the National Government has fluffed an opportunity to craft a Kiwi solution to the problem of music and movie piracy by telling internet service providers (ISPs) that the controversial clause may be rewritten.
Section 92a, which requires ISPs cut internet access "in appropriate circumstances" to customers who repeatedly infringe copyright, was due to come into effect on Saturday, till growing protests from bloggers prompted a rethink.
Prime Minister John Key said the law change would be delayed till March 27 to give more time for the recording and internet industries to reach an agreement setting out how ISPs would apply the clause. If no agreement was reached, section 92a might be "suspended" and the act re-written.
Ms Tizard, who served as associate Commerce Minister under Labour till she lost her seat in November, says she doesn't mind the delay. But she says advising ISPs the clause might be scrapped meant they now had no incentive to seek a deal with the recording industry over how to deal with repeat copyright infringers.
"It is like saying to kids who have discovered a way of getting lollies for free, 'if you don't pay for them we will let you go on taking them for free'.
"In my view they have completely fluffed it. The whole point of the act is that there are competing interests and what we need is the ISPs and the copyright holders to get together and talk about it."
The result might be that New Zealand was pressured into having harsher copyright laws as and when it negotiated a free trade deal with the United States, she says.
Ms Tizard says New Zealand music makers have been losing out because of piracy. "What we were worried about in particular was peer-to-peer file sharing. New Zealanders who make music and films can lose everything almost overnight if their work is illegally posted. One of the big recording studios told me that whereas a couple of years ago they were fully booked and when they were giving time away it was at 4am, now they are only about 60 per cent booked."
Protests against section 92a that saw some websites temporarily removed and bloggers black out their photos were "childish", she says.
"It is not going to get us any further forward. While I understand the concern of internet users who think that their rights to free music and free films are threatened, the right is not to steal New Zealand music and film makers' work. The right to use the internet is a vital one, but libraries can provide it."
One of the most controversial aspects of section 92a is that it is unclear what evidence would be required before ISPs would be required to cut off a customer, or who would assess their guilt.
Ms Tizard says the clause was left deliberately vague "as at no stage did I think the Economic Development Ministry officials or I had the answer to the process", but she believes the Copyright Tribunal could be the final arbiter.
The tribunal comprises a chair and two members, appointed by the Governor-General on the advice of the Commerce Minister.
Telecommunications Carriers Forum chief executive Ralph Chivers says the industry body won't stop trying to broker a deal with the recording industry on section 92a in the wake of Mr Key's announcement.
"While some people seem to have interpreted this as an opportunity to get rid of [section 92a] altogether, I think that is a misinterpretation. I think it is pretty clear the Government is looking for the major parties involved to sort out how it will work, because it won't be suspended for ever, and if it is replaced it will be with something a lot more prescriptive."
- The Dominion Post