Copyright change about more than idle threats

TOM PULLAR-STRECKER
Last updated 05:00 25/04/2011

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If you watch videos or listen to music over the internet without paying for it, there is a chance you may get a nasty surprise in the post or your email inbox after September when a controversial change to copyright law will come into force.

That surprise would be a notice from your internet provider to say that you have been detected illegally accessing copyright material. The first letter or email could be followed by another warning, and then a third that will put you on notice that you may be called to account by the Copyright Tribunal and fined up to $15,000.

Victoria University law lecturer Susan Corbett says ignorance that a work was copyright is no defence.

Internet users who infringe copyright, accidentally or not, should also be aware their web surfing habits may be exposed for all to see. Copyright Tribunal chairwoman Professor Susy Frankel sees no reason why tribunal rulings should not be made public and the Economic Development Ministry says they probably will be.

There are two big unknowns that will determine just how common a headache that may become for internet users. These are the price copyright owners will need to pay internet providers to send those notices, which has yet to be determined by the ministry, and where the burden of proof will sit when cases go to the tribunal.

Powerful forces – the music, movie and internet industries – have shaped the final form of the legislation, which has been batted about and watered down by politicians in the face of strident public protests.

But InternetNZ chief executive Vikram Kumar believes "ordinary" internet users are kidding themselves if they think it could have no effect on them. "The thing I have heard most is misplaced overconfidence from people that they won't get caught by rights holders. `How would they know and why would they care about little old me?'. They can and they do."

At the heart of the legislation is a requirement that internet providers pass on warnings from rights holders and, after the "third strike", forward the internet user's name and address to the Copyright Tribunal if asked to by the copyright owner, so their case can be heard. Mr Kumar says the movie and music industries already have very good systems for identifying the IP (internet protocol) addresses of people accessing pirated material. But without the missing link of being able to match those addresses to individuals, they have had little power to take any action.

Easiest to hunt down come September may be people who access pirated material such as mainstream movies and television programmes through peer-to-peer file-sharing services such as BitTorrent, which networking giant Cisco says account for a quarter of all internet traffic. Users who download material from file-sharing sites agree in return to host it on their own computers, which copyright owners can then search for and upload to identify each host.

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Mr Kumar says people who view copyright material on YouTube and other websites that don't distribute content between members might be harder to trace. But he says copyright owners can seek IP addresses from website owners.

He says they also have access to "more covert methods" for getting those now all-important IP addresses.

It will be easiest for big businesses that are part of an industry group, such as the United States' Motion Picture Association or the Recording Industry Association, to enforce copyright.

That is because the detection notices will only escalate to a warning notice and then to an enforcement notice if an internet user has breached the rights of either the same copyright owner in each instance, or different organisations that have agreed to be represented by a common umbrella group. It is, therefore, conceivable internet users might receive several detection notices from unrelated copyright owners before they get a "second strike" warning. Without being a part of an umbrella group, copyright owners risk scattergunning expensive infringement notices.

Copyright owners will have to reimburse internet providers for at least the bulk of the cost of sending out infringement notices to their customers.

The Economic Development Ministry will put out a discussion document on the fees and other implementation issues this week.

Internet providers are seeking a fee of between $14 and $56 a notice, which could act as a big deterrent to copyright owners pursuing claims.

But the select committee which considered the legislation said it was important ISPs did not seek to profit from them.

Tony Eaton, chief executive of the New Zealand branch of the Motion Picture Association, NZFact, says those costs will be critical in determining how its members use their new powers.

Until they are finalised, he won't speculate on whether they might take a few prolific offenders to the Copyright Tribunal, or whether they might seek to take enforcement action against some everyday offenders as a deterrent and to "educate" the public.

"From my perspective that hasn't been decided. It really comes down to what the cost of the notices is going to be."

Mr Kumar says that while it might be wise for copyright owners to stay away from cases that might go down badly in the public eye, it may be impossible in practice for them to target enforcement action. That is because it is the job of internet providers to send out the appropriate notices to customers, and copyright owners should only find out who they are taking action against once a case goes to the tribunal.

The tribunal will be able to hear cases based on submitted written evidence only, unless one of the parties wants to be present.

Mr Kumar says it is unclear how the tribunal's scales of justice will be weighted. The law states that infringement notices are "conclusive evidence" of guilt.

But if internet users produce evidence that "shows" the presumption of guilt does not apply, the burden of proof goes back on the copyright owner to prove an offence.

While that is causing confusion, Mr Kumar believes it will not be enough for internet users to simply say "it wasn't me", in order to dispute a claim and reverse the onus of proof. "Lawyers I have spoken to say you would have to say exactly why you disagree. How you would prove your innocence, that, at the moment is the biggest unknown for us."

Ms Corbett says a weakness of the legislation is that rights holders do not appear to need to prove they own the copyright of the work in question, which she says should be a "basic requirement", although they must provide evidence of ownership to the tribunal.

Mr Kumar says that overseas, between 20 and 40 per cent of infringement claims have proved not to stand up in court, often because of disputes over who owns material. However, Mr Eaton says those figures are historical and rights holders' processes for identifying infringers are now "much improved".

Professor Frankel would not be drawn on how the wording around the burden of proof in the legislation will be interpreted, saying that would be an issue on which parties would "presumably" make submissions to the tribunal. Nor would she discuss the factors the tribunal might take into account when deciding the quantum of any fines. "That would be locking in a formula before we have heard anything."

Critics of the law change make the point that a lot of material pirated by New Zealand internet users may not be otherwise available here. Ms Corbett says there is no requirement for the tribunal to take that into account when determining the size of fines. "We are disadvantaged in New Zealand being a country of copyright users, rather than copyright creators."

Should "mum and dad" internet users be concerned? "Maybe not the mum and dad, but perhaps the kids," she says.

- The Dominion Post

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