Thanks to Dave Crampton blogging about the Copyright Act 1994 amendments, I came across a very detailed review from lawyer Andrew Easterbrook, who has analysed the sections soon to come into force.
In summary, Andrew says that the new law is not about ‘guilt upon accusation’, and not technically guilt before innocence. His words:
The reason people think it does: [s.] 92C says that receipt of an infringement notice is one of the things that ISPs (including webhosts) should take into account in determining whether action needs to be taken in removing access to certain content stored on their servers. But infringement notices don’t prove infringement of copyright. All they do is claim copyright has been infringed.
As Andrew points out, there is nothing to stop a fraudulent infringement notice. The American method is arguably better on this front, where one provides a declaration which would see one be penalized for perjury if it is found to be false. There does not seem to be any balance in the New Zealand version, which gives a lot of power to claimants. And, as opponents of the amendments point out, innocent people can be caught up in these claims.
‘There is deﬁnitely inconvenience and hassle and annoyance upon accusation but not guilt,’ says Andrew, and on a technical point he is right—though I suspect that from a layman’s point of view, being accused of something and being made to feel guilty is the same as guilt. However, I’m not arguing against him on this one.
The major problem, from Andrew’s perspective, is this (original emphasis):
The biggest ﬂaw in my view is that noted above—the fact infringement notices are the basis of judging repeat infringement.
He has a couple of other points, too, showing why the amendments are ﬂawed. His second point I am less familiar with, but his third is important. An accuser has no real penalty for making a bad or fraudulent call against someone (unlike the US), the consequence being:
If I’ve been wrongly accused of copyright infringement I’d gladly stand up in court and say so. If it’s a borderline case … a court is the only place that can or should decide whether I have infringed or not. No way should the copyright owner itself get to decide this!
And that is where Kiwis are getting a raw deal, when you boil it all down. If this is tied in to National Government that feels it must kowtow to American lobbyists, which, as I said, would not be surprising given past behaviour, then it’s even more unreasonable that everyday New Zealanders are getting the short straw in any potential copyright disputes. The law, pre-amendment, was good enough for any copyright dispute that may arise between convention countries and, as I said, was probably stronger than comparable American legislation.
But of course technocrats, of which the National Party is comprised these days, must kiss up to big ﬁrms before they tend to the rights and freedoms of everyday New Zealanders.
Regardless of interpretation, there’s still little denying that this is unfair legislation that denies New Zealanders a fair go. And why the “blackout” has found so much favour among netizens, not just in New Zealand but worldwide. Posted by Jack Yan, 11:25
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