Why New Zealand Copyright Act is worse than US equivalent: legal analysis

, posted: 19-Feb-2009 11:04

CFFNZ Internet blackout day

Rick Shera of Lowndes Jordan, Barristers and Solicitors in Auckland is a very experienced ICT lawyer, with a masters degree in Internet and copyright law.

He has been involved with the current copyright issue for more than three years, assisting industry lobby group InternetNZ with its submission on Tizard's copyright act amendment Bill, plus the workshops held as early as 2006.

Rick has also worked with the TCF on the draft code of practice to go with the amended copyright act, and has held many discussions with the then minister responsible for introducing the bill, Judith Tizard, and also the rights holders' organisations like RIANZ and NZ FACT.

The below is Rick's brief analysis on why the new NZ copyright Act is worse than what the US has. It's posted here with Rick's permission.


I have said a few times that I think the ISP regime under NZ law is worse than in the US. Someone (I forget who) asked me the other day to explain why I say that.

Well it is reasonably clear if you take a look at http://www.copyright.gov/title17/92chap5.html#512 which is the US Copyright Law (or if you want Wikipedia's exposition, go here http://en.wikipedia.org/wiki/OCILLA). This was all enacted as part of the Digital Millennium Copyright Act (or DMCA as it is usually referred to).

It is interesting to note that the DMCA provisions focus on notice and takedown (and repeat infringement is something of an add-on because of the way it fits in as a condition of the safe-harbour). Whereas in NZ, as a standalone provision, s92A achieves greater significance.

As you can see, in the US they have, or require, the following, which NZ does not:

1. ACTUAL knowledge of infringement rather than "reason to believe" (notice and takedown s92C).

2. Any notice must contain specific content (NZ's reqs under s92D have now been passed but are not as prescriptive).

3. The notifier must include a statement that "the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law" and that "the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed"

4. Damages (including attorneys fees) are available for knowingly misleading or false notices (which may be awarded to anyone suffering damage, including the ISP). At least one case that I am aware of has awarded such damages (see http://www.internetlibrary.com/cases/lib_case364.cfm). In NZ of course the same SOP [Supplementary Order Paper] that introduced s92A took out the proposed $100k corporate and $50k individual fines for issuing false or misleading takedown notices.

5. In the US, the alleged infringer has a specific right to issue a counter-notice (ss512(g)(2) and (3)).

6. The ISP in the US is protected both from liability if it takes the material down and from liability if having done so in good faith, that decision turns out to be incorrect because the material was not infringing.

7. The repeat infringer termination policy requirement (s512(i)(1)(A)) is a condition of the ISP safe harbours rather than a standalone positive requirement. It is therefore more easily interpreted as it interlocks with the other exclusions of liability (not that that cures all of the problems that there are with this equivalent of our s92A - and you can see where our wording came from (actually from the US via Australia)).

If you combine all of the above plus the better rights US citizens have by virtue of their overarching fair use exception, I think you can see that NZ has ended up with a more draconian law both from the point of view of consumers and from that of ISPs.





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