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New Zealand announces more formal three-strikes proposal
By CMU Editorial | Published on Wednesday 15 July 2009
Three-strikes is back on the agenda in New Zealand. As those paying attention will remember, the New Zealand parliament sneaked through the controversial system for tackling online piracy earlier this year, but once it was law it was pointed out that no one had really worked out how it would actually work, so the whole thing was put on hold.
Three-strikes is, of course, a system whereby those who persistently access or share unlicensed content online are sent two or three warning letters that they are infringing copyrights and then, if they fail to heed those warnings, their ISPs are forced to cut off their net access. As previously reported, it’s been discussed quite a bit over here, but is not currently on the government’s agenda. It is, however, in the process of being introduced in France. Wherever the system is proposed ISPs, consumer rights groups and pro-file-sharing types all object loudly.
One big problem is how the warning letters are distributed and who, ultimately, decides if someone should be cut off. The whole idea of three-strikes is that content owners can act against infringers without having to go to the time and effort of taking each web-user to court. But some consumer rights types and legal people have a problem with the idea that people could lose their internet connections without there being a formal court hearing first. That very issue was raised by France’s Constitutional Council and has forced the French government to rethink how its three-strike system will work.
In New Zealand the specifics of how three-strikes would work were completely lacking from the original proposals, meaning the issue of who decides who gets disconnected, and what routes of appeal are available to those accused of infringement, weren’t considered at all. It seems politicians hoped content owners and ISPs could work that out for themselves, but as ISPs are opposed to the idea completely, there was no incentive for them to quickly come up with a voluntary code for administering the three-strike proposal.
Anyway, a New Zealand government working party has now drawn up a more formal process for how three-strikes might work. Under this system stage one would see the content owner lodge a complaint with an infringer’s ISP, who would be obligated to notify their customer of the complaint. If illegal file-sharing continues the content owner would issue a cease-and-desist order, which would presumably be issued via the infringer’s net provider too.
If file-sharing still continues, the content owner would lodge a complaint with the country’s Copyright Tribunal, who would get the infringer’s name and address off their ISP and issue a formal infringement notice. The user would then be obligated to reach an out of court settlement with the content owner, or to face a tribunal hearing. It’s at that hearing that the alleged infringer would presumably have the opportunity to defend themselves. If the infringer loses at the hearing the Tribunal will be able to order a range of penalties, from fines to disconnection.
The hope is that that system is suitably judicial to satisfy those whose opposition to three-strikes is putting the power of disconnection into the hands of content owners or civil servants, but at the same time a more efficient way to fight piracy than traditional primary infringement litigation against suspected file-sharers.
According to Billboard, New Zealand’s Commerce Minister Simon Power told reporters: “We need to provide a fair and efficient process to address repeat copyright offending. Unlawful file-sharing is very costly to New Zealand’s creative industries and I am determined to deal with it”.
The boss of the Australasian Performing Right Association, Anthony Healey, gave the proposals a cautious welcome, saying: “From our perspective, what is encouraging is that it focuses on the role ISPs need to play in solving to this problem. We hope that once they realise that they can’t get away with doing simply nothing, that will lead us to better licensing opportunities”.
It remains to be seen how many of the people who staged a high profile and global campaign against the New Zealand three-strike system when it first became law are satisfied with the more formalised process behind the disconnection system. Not all will be, but enough might be to enable political types to ignore those who continue to loudly oppose. Time will tell.
