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Public Interest Law Journal of New Zealand |
Last Updated: 21 October 2014
Public Law Ramifications of the Copyright (Infringing File Sharing) Amendment Act 2011
Oliver Sutton*
This paper discusses the new fast-track regime introduced to tackle online copyright infringement. The regime has been targeted at peer-to-peer software, which shares files directly between computers. It is a technically complex area, and this paper calls into question whether the information provided to pursue a claim can be technically correct, if the regime is practically robust and if it is appropriate in light of the New Zealand Bill of Rights Act 1990. An analysis of the approach of several jurisdictions is compared to the New Zealand regime, and discussion is provided regarding the current workability of these jurisdictions’ responses. The paper also looks at other issues surrounding the controversial legislation, such as its introduction, the calculation of awards and the concerning onus of proof.
This
paper is not an endorsement of infringement of copyright. Nor is it a defence
for those who infringe copyright. I will, however,
call into question the
approach adopted to ‘deal’ with infringers and the resulting balance
between copyright and freedom
of speech. Copyright continues to have an
intrinsic societal value to encourage creativity and allow artists to enjoy the
fruits
of their labour. What I question is whether the response to date is the
best possible system in today’s internet-based environment.
A
relatively quick and easy way to flout copyright laws is sharing copyrighted
materials over the internet using file-sharing software,
such as the Torrent
method. This enables users to share files directly between computers
over the internet. Whereas previously copyright holders could take action
against the central host, such as Napster
and
Grokster,[1] the Torrent method only
involves end users.
There has been a wave of global responses to
monitoring and responding to this growing concern. New Zealand has introduced
its own
copyright infringement legislation in response. This paper will focus
on:
The legal position before CIFSAA
against an individual was to take a conventional infringement claim in the High
Court. The difficulty
with this is that it is often costly, lengthy and complex
to identify the infringer. The Ministry of Economic Development stated,
“Infringement using P2P [peer-to-peer] file sharing technology is prolific
and the current enforcement regime provided for
in the [Copyright] Act has not
been an effective deterrent.”
[2] Part of the reason for this is that
copyright has traditionally focussed on the large-scale commercial infringers,
and is not well
suited to individual infringers.
The standard Court
regime for an individual infringer is often disproportionate to the end user
that the rights holder takes action
against. An example is the US case of
Jammie Thomas-Rasset, found liable for infringement of 24 songs. The awards
varied between
several damages hearings from between $1,920,000 and $54,000 (the
final figure arrived at).[3]
In
New Zealand, the Copyright (New Technologies) Amendment Act 2008 introduced
section 92A: which allowed suspension of accounts.
92A Internet service provider must have policy for terminating accounts of repeat infringers
(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.
(2) In subsection (1), repeat infringer means a person who
repeatedly infringes the copyright in a work by using 1 or more of the Internet
services of the Internet service
provider to do a restricted act without the
consent of the copyright owner.
It was introduced by Supplementary Order
Paper 193 on 1 April 2008 during the Committee Stage (i.e. after Select
Committee recommendations
and the second
reading).[4] As a result, there was
no public feedback on its introduction, but New Zealand saw its own blackout and
protests.[5] Section 92A never came
into effect, and CIFSAA was introduced to repeal that provision and put in place
a more elaborate system.
Urgency has become a routine way to
read and accelerate the passage of legislation due to relatively few hours to
work through the
“legislative log
jam”.[6]
Urgency is, as several critics have pointed out, not the best vehicle to
routinely speed up the passage of legislation.
[7] Not only may it lead to a perception
of the government “ramming through” legislation to avoid public
comment[8], but it also removes the
stand-down periods between the readings. These stand-down periods allow
legislation to proceed through
the House at an appropriate speed and give the
opportunity for comment from both members of the House and members of the public
to
interact with the
debate.[9]
Applying urgency to
multiple stages may undermine the democratic mandate of the government by
reducing the opportunity for the public
to comment on the passage of the
legislation. Speculation of the reason CIFSAA was accorded urgency was the
reduction in time of
discussing technical issues given the misinformation and
lack of understanding that arose during the parliamentary
debate.[10]
The
general public was not aware of CIFSAA being debated until the day of debate,
and it passed its third reading the next morning.
This is a severe inhibitor to
allowing public feedback, participation and comment. Although there was an
extensive Select Committee
hearing process, there does not appear to be
sufficient reason to truncate the parliamentary process and shorten the possible
wider
public debate and commentary on progress of the legislation in this case.
Citizens did show interest by covering the debate via
Twitter and other live
updates, showing that members of the public would have contributed to commentary
on the progress of legislation
should it have been available, and would also
have corrected the lack of technical understanding displayed during the
debate.[11]
CIFSAA
sets out a fast-track process for rights holders who have traced infringement
using file-sharing software to an internet protocol
(“IP”)
address.[12] On provision of the IP
address to the Internet Protocol Address Provider (“IPAP”),
[13] the IPAP sends out a warning letter
on up to three occasions – a Detection Notice, a Warning Notice and an
Enforcement Notice.
Following the Enforcement Notice, the rights holder can make
a claim in the Copyright Tribunal.
The account
holder of the internet in question recieves the notices, is taken to the
Tribunal and may potentially be fined. Technical
possibilities such as account
hacking, WiFi cracking or trojaned machines do not seem to have been taken into
account.[14] In New Zealand the
warning process is all carried out in the standard way that the IPAP bills their
client, often by email.[15] It
would be possible for the warning emails to be filtered out by a spam filter.
In France, where the HADOPI regime is already
active and includes a similar
liability section, a second warning is sent by registered letter. This provides
evidence that an infringement
notice was received.
In the UK case of
ACS:Law[16],
Judge Birss was not in favour of absolute liability and “that the process
of linking copyright infringement to a named individual
by pinpointing an IP
address associated with that person was extremely
problematic.”[17] He went on
to pose more questions than answers, again underlying the problematic nature of
attempting to prove infringement in the
online environment:
[18]
What if the defendant authorises another to use their internet connection in
general and, unknown to them, the authorised user uses
P2P software and
infringes copyright? Does the act of authorising use of an internet connection
turn the person doing the authorising
into a person authorising the infringement
within s16(2) [of the Copyright Designs and Patents Act 1988]? ... Then there
is the
question of whether leaving an internet connection 'unsecured' opens up
the door to liability for infringement by others piggy-backing
on the connection
unbeknownst to the owner. Finally what does “unsecured” mean?
Wireless routers have different levels
of security available and if the level of
security is relevant to liability – where is the line to be
drawn?
Another potential issue that was not taken into account is the
“fair dealing” defence provision that applies to the Copyright
Act
as a whole. If infringement has occurred, no “fair dealing”
defences can be raised under CIFSAA. For example, a
defence could be raised
that the downloaded material will be used for academic studies, research or
private study.[19]
Under
CIFSAA there is no option but to find someone liable for infringement if their
IP address has been used to infringe material.
Whatever the nature of award,
there will still be some stigma attached to the process, including possible
publication of a party’s
name as a ‘pirate’. As yet no cases
have been brought before the Tribunal, and I suggest any defence will be
reflected
in the award that the Tribunal orders against the infringer.
An analysis of the 2013 Copyright Tribunal decisions suggests that many
infringers are unaware of the P2P software in use, and unaware
of technical
defences. There were several queries over evidence such as the IP address,
proving that the WiFi connection had not
been hacked, and that the infringing
material was not present on the computer. Similarly, many respondents were
unaware of the fact
that one download may sit passively in the file-sharing
software, yet continue to trigger infringement notices. However, all of
the
respondents declined to appear in person – mainly because, it seems, there
were uncertain of how to proceed with a
defence.[20]
Under the current regime, the Tribunal must
order an account holder to pay a rights owner a sum if there was an infringement
of the rights owner’s copyright at an IP address
of the account holder,
and if the 3 notices were issued in accordance with
CIFSAA.[21] The Regulations provide
that the Tribunal may order payment of the lesser of $15,000, or
specified costs and an amount that is “appropriate as a deterrent against
further
infringing”.[22]
Given
the mandatory language in the Act and permissive language in the Regulations, I
suggest that the Tribunal may have more discretion
available to it than first
appears: the $15,000 or alternative provided for are not definitive. The
Tribunal may decide that an alternative (lesser) fine is appropriate, for
example if the ‘infringer’ has had his account hacked.
The
award issued to the rights holder is made up of the compensation for the cost of
purchasing the music; a contribution towards
the fees paid by the rights holder
to the IPAP; reimbursement of the application fee to the Copyright Tribunal; and
an additional
sum as a deterrent against further infringing.
A summary
of 2013 decisions of the Copyright Tribunal awards, and the positions taken by
the respondents, is provided in Schedule
One.[23] The amount of the award
varies between $255.97 and $914.35 across the 17 cases so far. Generally
speaking, those who admitted liability
and engaged in the proceedings received a
lesser deterrent sum (which is the most discretionary award). There is also
some ambiguity
on how to calculate the first head, the compensation for
purchasing the music. The practice seems to be to award the cost of purchasing
the offending music track in the iTunes store. If one track repeatedly triggers
more than one infringement notice, the cost is multiplied
– but not in a
couple of the cases.[24] While this
is the least significant amount of the award, I would suggest that there would
need to be a tightening of the guidelines
for calculating awards.
The method of detecting infringement is
set out in a RIANZ submission to the Ministry of Economic
Development.[25] The IP addresses
provided by a “third party copyright infringement company” includes
“number of shared files,
list of shared files and various information
files to prove the making available of the infringing
files”[26] (emphasis
added). This does not seem on all fours with the legislation, as
“infringement” is defined as “an incidence
of file sharing
that involves the infringement of copyright in a work by a
user”.[27] It would therefore
seem possible for a user to receive a notice of infringement even if there has
been no actual “infringement”
– just that the user may have
files available and ready for infringement.
A study carried out by the
University of Washington discussed the fallibility of IP monitoring, and found a
“potential for false
positives and implication of arbitrary
addresses”.[28] They managed
to ‘frame’ a printer for copyright infringement by modifying
information provided to the P2P network.
They also discussed direct detection
(more conclusive) and indirect detection (less conclusive and easier to conduct;
highlights
computer on the network but the list of computers is inconclusive as
to whether they are actually exchanging
data).[29] The method described by
RIANZ appears to be indirect detection.
This provides some worrying
concerns about the robustness of any data provided, especially given the onus of
proof provision.
Firstly, this has been widely reported as
“guilty until proven
innocent”.[30]
As Patricia Ieong points out, this is a misconception as the regime is civil not
criminal.[31] What the Act does do
is establish a presumption that each notice brought to the Tribunal is factually
correct.
Section 122N sets out that:
(1) In proceedings before the Tribunal, in relation to an infringement notice, it is presumed—
(a) that each incidence of file sharing identified in the notice constituted an infringement of the rights owner's copyright in the work identified; and
(b) that the information recorded in the infringement notice is correct; and
(c) that the infringement notice was issued in accordance with this Act.
(2) An account holder may submit evidence that, or give reasons why, any 1 or more of the presumptions in subsection (1) do not apply with respect to any particular infringement identified in an infringement notice.
(3) If an account holder submits evidence or gives reasons as referred to in subsection (2), the rights owner must satisfy the Tribunal that, in relation to the relevant infringement or notice, the particular presumption or presumptions are correct.
The Copyright Act itself has certain ownership
presumptions for literary, dramatic, musical or artistic works; namely there is
a presumption that the
name appearing on the work is the
author.[32] The presumptions in
CIFSAA go further, with a presumption that infringement actually
occurred.
The initial burden is on the accused to disprove or “give
reasons” that there was an incidence of file sharing. There
are several
technical reasons why someone may be found liable as set out above,
[33] which a technically challenged
person may not even be aware of. American experience suggests infringement
notices are “flawed,
easy to generate, often meritless, and an inadequate
substitution for a full trial on the
merits”.[34]
Most of
the respondents in the 2013 Copyright Tribunal cases have been unable to grasp
the reality of any technical shortcomings,
and many displayed ‘computer
illiteracy’. The high onus of proof, in an area so technically
challenging and difficult
to understand, makes it almost an impossibility for a
respondent to provide any form of rebuttal.
Google suggests that Section 122N(1) should be removed and the Tribunal should have to “make a positive finding of fact”, and “provision for penalties to be imposed on rights owners who make false declarations and/or bad faith claims”.[35] Google’s initial submission to the Telecommunication Carriers’ Forum on the old section 92A “indicated that of notices sent to it under the US Digital Millennium Copyright Act (DMCA): 57% were from business targeting competitors; and 37% were not valid copyright claims”.[36]
The ACS:Law case[37] is
instructive of how claims may lack merit. In 2009-2010, ACS:Law sent out
several thousand letters accusing people of infringing
copyright. Lord Lucas
referred to it as
“blackmail”,[38] and
Judge Birss was highly critical of the claim after ACS:Law filed proceedings
against 26 ‘infringers’ and then attempted
(unsuccessfully) to drop
the case after proceedings started. At the hearing, evidence was not produced
as it was in ‘storage’,
and the case went no
further.[39]
As the CIFSAA
regime is strict liability, there are significant obstacles to bring sufficient
“reason”, especially if
someone is not represented so may not be
aware of the possible defences. Possible defences could be:
More emphasis should be put on the need for the
claimant/plaintiff to prove their case to avoid legal ‘fishing’
expeditions
such as the ACS:Law situation. If the industry was to successfully
lobby for a drop in the fee to issue a notice to the IPAP, this
would raise even
more significant concerns as there is no sanction for incorrectly filed notices.
There is also no unjustified proceeding
clause in case the accuser has an
unmeritous claim (as is found in the Copyright Act itself).
[40]
Unless there has been an opposition,
liability for infringement is almost a fait accompli once the copyright holder
puts in their
application. In the New Zealand system, a lawyer is only allowed
by consent of the Tribunal.[41] The
reasons given for this were
twofold:[42]
Given that the majority of
infringement notices have been issued by Recording Industry of New Zealand Inc
(“RIANZ”) for
music, and possibly will be by the New Zealand
Federation against Copyright Theft (“NZFACT”) for
movies,[43] it seems hard to imagine
a scenario where there will not be an individual “substantially
prejudiced” when faced with
such an industry group.
There is also
an assumption that the hearing at the Copyright Tribunal will be on the
papers.[44] I suggest that as a
result of the onus of proof and other process concerns, the accused should
automatically be invited to appear
before the Tribunal with legal counsel if
desired to explain whether there are any circumstances which may rebut the
presumption
(even though these circumstances may be limited).
Under section 122P, the threat of
internet disconnection looms. While it cannot come into force until it has been
enacted by an Order
in Council acting on advice of a Minister, and a
disconnection order will only be issued by a judge, this is the area that has
received
most criticism both from within New Zealand and from an international
point of view. A UN Special Rapporteur was highly critical
of, and
“deeply concerned” with, graduated response legislation, such as in
France and the
UK.[45]
New
Zealand is currently negotiating the Trans-Pacific Partnership, which includes
among other issues the status of copyright protection.
Should the termination
clause be required for “international obligations” as a result of
“trade negotiations on
measures to address illegal P2P file sharing of
copyright protected works”,
[46] it would be possible for New Zealand
to enact the suspension provision under s 122P by Order in Council without
public approval or
a majority Parliamentary vote. The New Zealand government
should be reluctant to take such a step as it will face significant
international
and domestic criticism and backlash, such as the initial
resistance against implementing section 92A.
Bernt Hugenholtz comments, “the potential
conflict between copyright and free speech has long been ignored in European
law”
and suggests a reason for the debate not being discussed in depth:
there is an internal balance between freedom of speech and copyright
because both promote speech.[47]
Graham Smith confirms “the appropriate balance in this area is found
exclusively within the internal mechanisms provided by
the copyright
statutes” [48] and that
“copyright can be constrained by the external mechanisms provided by
fundamental rights.”.[49]
Thus the fine balance of protecting copyright entails curtailment of freedom of
expression as a necessary limitation.
A recent judicial review in the UK
of the Digital Economy Act 2010 (which contains graduated response provisions
for infringing file
sharing) found that:
Parliament, through current copyright legislation, has already struck
a balance between ... providing incentives to actual and potential creators of
audio-visual material, and, on the other, the
potential welfare loss to ...
consumers ... Existing copyright legislation may strike that balance in a way
that is controversial
or open to criticism. However, in my view, Parliament,
when considering measures such as the contested provisions ... is entitled
to
proceed on the basis that existing copyright law does strike a fair balance
between the interests referred to. In the context
of such measures, Parliament
does not have to re-calculate that balance. Indeed, there would seem to be
serious practical and political
difficulties with any such
re-calculation.[50]
The
question to be considered in New Zealand is, given the process concerns, whether
the external mechanism in the case of file-sharing
has tipped the balance
too far in favour of copyright and to the exclusion of freedom of expression in
New Zealand.
There is concern that
invoking greater censorship over the internet, a medium that offers a platform
for entrepreneurs, will “discourage
budding entrepreneurs”, as
discussed in the US backlash to the 2011 proposed Stop Online Piracy Act and
Protect Intellectual
Property Act (now both
retracted[51]) which led to a wave
of blackouts amongst the online community, including the famous Wikipedia
blackout. The UN Human Rights Council
passed a resolution on 5 August 2012
that:[52]
affirms that the same rights that people have offline must also be
protected online, in particular freedom of expression, which is
applicable
regardless of frontiers and through any media of one’s choice.
The
Special Rapporteur report also recognised the internet as
a:[53]
key means by which individuals can exercise their right to freedom of opinion
and expression, as guaranteed by article 19 of the Universal
Declaration of
Human Rights and the International Covenant on Civil and Political
Rights.
Given these international concerns, and the move in several
countries to protect internet freedom or access to the internet as a basic
human
right or at the very least a “freedom of expression”
forum,[54] any move to limit freedom
of expression in relation to the internet should not be taken lightly.
The New Zealand
Bill of Rights Act (“NZBORA”) provides that “everyone has the
right to freedom of expression, including
the freedom to seek, receive, and
impart information and opinions of any kind in any
form.”[55]
To consider
whether there is a potential right to be prima facie protected, it must first be
established whether file-sharing/P2P
activities entail freedom of expression.
It is already clear that the internet is a platform on which to express ideas
and receive
and impart
information.[56]
Enrico Bonadio suggests that copyright should be relaxed when it comes
to file-sharing technologies as it is an important forum for
distributing free
software that developers may want feedback on, and a platform for new artists to
distribute their work free of
charge in the hope of being noticed. He claims
file sharing is an “engine of free speech”, and boosts and
strengthen
freedom of speech, artistic and cultural
activities.[57]
I submit that
file-sharing and P2P activities are prima facie entitled to protection from s 14
of the New Zealand Bill of Rights Act.
While I am not condoning copyright
infringement and free distribution of content, any legislation restricting P2P
activities will
need to be “subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic
society”.[58]
The UK has similar provisions to our Bill of
Rights Act in the Human Rights
Act,[59] which incorporates the
European Convention on Human Rights
(“ECHR”).[60] Article
10 of the ECHR provides that “everyone has the right to freedom of
expression”, however:
...since it carries with it duties and responsibilities, may be subject to
such formalities, conditions, restrictions or penalties
as are prescribed by law
and are necessary in a democratic society...for the protection of the reputation
or rights of others.
The Digital Economy Act 2010 (“DEA”) was
introduced as a mechanism to try and curb online file infringement. The
proposed
regime provides that if three letters in a year have been sent, a
copyright holder can apply to court for details of the infringer
and then take
further civil action. This could involve reducing internet speed or temporarily
cutting off access to the
internet.[61]
Following the
DEA’s introduction, BT and TalkTalk filed judicial review
proceedings.[62] While the
proceedings mainly revolved around liability of internet providers, the court
discussed what was claimed to be a “disproportionate
restriction on...the
right to free expression or to impart and receive
information”[63] and discussed
deference to the law-maker. The Court attached substantial weight to the
balance struck by Parliament as it was an
area in the “particular province
of the political branches” as it was a problem of social and economic
policy, and there
had been a lengthy consultation
process.[64]
The Court also
held that:[65]
...this is not a case where...there is a human right, or a fundamental EU
freedom , and on the other side the State is seeking to
restrict or interfere
with that right on grounds of general utility.
While this statement
would be problematic if applied in New Zealand, it is important to bear in mind
that the DEA has a substantially
different process than in New Zealand. The DEA
keeps the process in the courts, and just gives copyright holders the option to
apply
for the names of infringers so as to be able to bring a court proceeding
more easily.
A report on the DEA was prepared by the London School of
Economics, two days prior to the first instance BT hearing, which discussed
the
clash between copyright enforcement and
innovation.[66] The report was
critical of the Act as protecting an outdated business model, whereas it should
be promoting peer-to-peer software
as an innovative platform, particularly for
software creation. It also highlights that “like the creative industry,
the DEA
fails to acknowledge that peer-to-peer file-sharing is a lawful activity
and is often used to share content that creators make freely
available and to
drive innovation in the
sector”.[67]
This
report also suggests that there is a causation problem between associating
declining sales with copyright infringement. Not
every user who downloads a
piece of music illegally would buy it instead. Also, statistics prepared by the
music industries do not
include live stage shows (which accounts for around half
of all profit),[68] nor does it take
into account the general financial decline of world markets as part of the
causation factor.
The Copyright Tribunal to date has not been able to
quantify the loss suffered by the music industry. The “possible effect
of
the infringing activity on the market for the
work”[69] is an area that the
Tribunal has to take into account as part of the deterrent against further
infringing award. To date, however,
the Tribunal has only gone as far as to
admit that there is a “possibility that the market for the relevant work
has been deleteriously
affected”.[70] The awards
have been relatively minor, suggesting that the Tribunal puts little weight on
this head.
The French
HADOPI[71] regime (an authority set
up to monitor internet infringement and impose sanctions) was introduced in
2009, and reviewed by the Constitutional
Council, or Conseil
constitutionnel, (who, since 1971, have had the power to reject law as a
violation to the Declaration of the Rights of Man and of the Citizen).
The
Constitutional Council had serious concerns that the new law might not maintain
constitutional fundamental freedoms and rights
because HADOPI “lacked
compliance” with procedural
safeguards.[72]
In summary, the Constitutional Council found
that:[73]
As a result, the second version of the regime
(“HADOPI 2”) turned online infringement into a crime, and the
process now
has three steps: email, followed by registered letter, followed by
an “invitation” to appear before HADOPI who decides
whether to lay
charges. If charges are laid, the judge can then balance the rights of
copyright holders with any potential limitation
to that individual’s
freedom of expression. A user who fails to secure his/her internet connection
can also be penalised.
Jeremie Zimmermann from advocacy group La
Quadrature du Net suggests that the law will be ineffective. The first person
to be ‘invited’
to explain himself was Robert Tollot, who claims his
account was hacked and that there was no evidence of infringement. However,
a
HADOPI spokesperson said that “the evidence is the second
warning”.[76] Fortunately Mr
Tollot was accompanied by a lawyer to the meeting, and nothing further has been
reported.
Freedom of expression in NZBORA is a
protected right, and any limitation of statute would need to be a
“justified limit”.
While recognising that the courts are also
protecting property rights, the justified limitation still needs to be analysed.
While
the New Zealand courts have adopted differing approaches to the balancing,
guidance can be found from several cases.
In R v Poumako, the majority affirmed that an interpretation consistent with NZBORA took preference over any other possible alternative and “it is not a matter of what the legislature...might have intended”.[77] They then applied a limited interpretation to the ‘home invasion’ provision, by not applying the law before the new definition of ‘home invasion’ had been enacted. The outcome was, in fact, not any different as the judge was still entitled to impose the sentence he did, so it made no practical difference. On the other hand, the minority (Henry and Thomas JJ) held that the provisions were clear and unambiguous and the law should be applied, although Thomas J would have issued a declaration of inconsistency.[78]
The majority view from Poumako is that, as long as a meaning can be
found somehow that can be fitted with a rights-consistent meaning, this is
allowed under NZBORA,
s 6 despite Parliament’s intentions.
This was
followed by R v Pora[79],
where the majority held that retrospectivity could either go back to the date
announced in Poumako or further back to when minimum parole periods were
introduced, but not before. Regardless, it did not apply when Pora
committed the murder, so the minimum sentence provision was quashed.
In
other cases concerning freedom of speech and the right to protest, Brooker v
Police[80] and Morse v
Police[81] read down
respectively “disorderly” to involve conduct that disturbs public
order, and “offensive” as behaviour
disturbing public order.
Hansen v
R[82]
is the leading New Zealand Supreme Court test for a prima facie breach of
section 14 of the New Zealand Bill of Rights for freedom
of expression. The
majority test adopted by McGrath and Tipping
JJ[83] was essentially:
1) What is the natural meaning to be applied?
2) Is there an inconsistency with a protected right given that meaning?
3) If yes, is the limit justifiable under section 5? This includes:
a) Rational connection;
b) Impairment of the right to a minimum;
c) Proportionality to the objective.
4) If inconsistent, is there another meaning from the statute that can be read consistently?
5) If there is no alternative meaning, then the statute must be applied as
under 1).
The ‘justifiable’ test at step 3) was adopted from
R v Oakes [1986] 1 SCR 103. The ‘proportionality test’ and
‘alternative meaning’ has also been recommended by the Special
Rapporteur
who suggests that:
[84]
any limitation to the right of freedom of expression must pass the
following three-part, cumulative test:
(a) It must be provided by law, which is clear and accessible to everyone...
(b) It must pursue one of the purposes set out in article 19, paragraph 3, of the covenant, namely (i) to protect the rights or reputations of others...
(c) It must be proven as necessary and the least restrictive means required to achieve the purported aim (principles of necessity and proportionality).
The majority test from
Hansen v R is similar to the approach taken by Robert Danay. Robert
Danay has written on the subject and found that P2P is used for
imparting/receiving
ideas, and subject to Article 10 of the ECHR. He conducted
an analysis of whether the UK Copyright, Designs and Patents Act 1988
is
directed to one of more of the objectives specified in it and is shown to be
necessary in a democratic society and analysed of
whether the legislation met a
proportionality test in terms of P2P
file-sharing.[85]
I have below compared some of his results to a New Zealand Hansen
test.
CIFSAA
protects property rights of the creator of a work, just as other property rights
are protected in today’s society. It
reflects the nature of copyright
law, which balances rights holders’ interests and public access to works.
As Danay suggests,
there is a legitimate objective of promoting creativity and
development of works, and securing a just reward for the creators, which
can be
achieved by imposing a copyright scheme to protect rights holders.
Having discussed
the fundamental nature of P2P software, and the way in which it can and is used
to foster innovation and act as an
engine of free speech and/or as a cultural
exchange and a “vital element of
communication”,[86] there is a
protected right under section 14 of NZBORA: freedom of expression. Strict
scrutiny needs to be observed when limiting
a right.
Even if there is inconsistency
with a protected right, it may be ‘justified’ under section 5 of
NZBORA. The Oakes test was adopted in Hansen v R to discuss
whether a limit is justifiable:
(a) Is there a rational connection between objective and limitation?
The statistics provided to link infringement to
file sharing have been, at best,
ambiguous.[87] The industry as a
whole should be looked at, and the effect on the income of individual
artists, not just the major industry labels and representatives.
Many
individual New Zealand artists do not support
CIFSAA.[88] Some bands have found
it useful to release free items online, and have increased their market share
significantly following the
experiment.[89] Some critics have
argued that “many artists will greatly benefit from the unprecedented
marketing opportunities generated
by P2P technology”, and that
“file-sharing becomes a free promotional
tool”.[90]
Danay
suggests that P2P file sharing has had an effect “statistically
indistinguishable from
zero”,[91] and that any
decline in sales is due to other economic factors, and even if sales decrease,
there is still a question whether remuneration
to the artist is reduced and that
it leads to lesser creation.[92]
Danay proposes that there is no rational connection between the Act’s
objectives and the measures taken.
The claims by the copyright industry
also do not appear to take into account that there are now options to buy only
one or two songs
from an artist (for example, via iTunes) instead of buying the
whole CD, which would have a significant impact on revenue.
I do not suggest that there is no rational connection between the
legislation objective and the limitation imposed, but it is tenuous. The
infringement process is
geared against the use of a platform that can equally be
used by artists to promote their work.
(b) Minimal impairment
CIFSAA does not provide minimal
impairment of freedom of expression. It imposes a Tribunal system which
involves prima facie liability, little acknowledgement of the technical
problems faced in the detection process, a fast-track process without
representation
and the threat of account termination. There are other solutions
which were not considered as a response to infringement. While
not endorsing
infringement, perhaps it is time to look at other business models to encourage
people to purchase legal copies by providing
easy-to-use, inexpensive and easily
accessible global platforms of distribution, backed by an enforcement
regime.
There is a significant ‘chilling effect’ on the use of the
internet and P2P software: users may fear that their IP address
will get
erroneously accused of file-sharing, even if they are using P2P software for
what they thought was a legitimate purpose.
Therefore many people will avoid
the benefits that such software brings and avoid it entirely.
Daney
suggests there are other methods which “attempt to secure remuneration for
copyright owners without creating the danger
of a free expression chill stemming
from the imposition of harsh legal
consequences.”[93] Possible
alternatives are discussed in more depth
below.[94]
(c) Proportionality to the objective
As a whole, CIFSAA is
not proportionate to the objective. Not only does it encroach on fundamental
rights and provide a disincentive
to use software and file-sharing that could
otherwise be used to encourage innovation and freedom of expression and
communication,
it could also be potentially used by the copyright industry to
send ‘spamming’ notices. Fortunately there is a small
fee of $25
involved to limit the amount of notices sent; otherwise if the fee is dropped to
$0 or $2 as advocated by the Copyright
Council, Society of Authors, RIANZ, APRA
and Copyright Licencing,[95] it
could lead to a ‘fishing’ expedition.
I suggest that any enforcement system needs to re-introduce a fair
balance between the copyright holder and the end user: the balance
between
protecting rights holders and the constitutional rights to communicate, share
and search has been tipped too far towards
the copyright holder. This can be
done by altering the process to provide more safeguards for the alleged
infringer.
The courts, when faced with a dilemma between rigid
application of a statute that comes up against restricting fundamental rights,
may work hard to adopt an alternative position. There are several ways in which
a court could limit the effect of CIFSAA:
a person that operates a business that, other than as an incidental feature
of its main business activities...
There is a weak argument for interpreting
IPAP narrowly. For example, Vodafone’s main business is cellular
networks, and their
coverage of broadband internet could be seen as an
“incidental feature” of its business activities.
While accepting that these are strained and unlikely interpretations,
they would allow a court to find some leeway in certain circumstances
to give
preference to access to communication rather than enforce legislation that is
contrary to fundamental rights.
Alternatively, a court might find that
the Parliamentary intention is clear, albeit inconsistent, and apply the law (as
in the R v Poumako and in the majority decision of Hansen –
a finding that the law was not justified did not prevent the application of the
law.)
Importantly, it should be in the hands of the Courts aided by legal
counsel to carry out this delicate balancing process. A fast-track
process is
not appropriate where fundamental rights are at stake.
To
date, the industry which lobbied so hard to achieve CIFSAA has not made
significant use of it. NZFACT has declined to take any
part in the process due
to the costs involved.[97] Some
industry members claim they are not issuing as many notices as they could
because the fees are too high.[98]
It is understandable that the cost to issue a notice may not cover the cost of
the work infringed. The Society of Authors points
out that it is not
economically viable that, where an e-book costs between $15-$19 and the cost to
issue an enforcement notice is
$25, it does not make financial sense. As at 26
April 2012, RIANZ has only issued 2,766 notices which have resulted in 3
enforcement
notices.[99]
In
submissions to the Ministry of Economic Development, who have been carrying out
a review of the $25 enforcement notice fee, providers
such as
TelstraClear[100] and
Telecom[101] noted that there was
a drop in internet use immediately following the Act coming into force, but
internet usage levels have since
climbed back up. The IPAPs have not monitored
protocols such as file-sharing software, so cannot be sure of the effectiveness
of
the legislation. Even if they did monitor P2P networks, there would be no
way to distinguish between the legal and illegal use of
the software.
Independent research carried out by Shane Alcock from the University of Waikato
finds that since the legislation was
introduced web use as a whole has remained
static, P2P use has declined and use of Remote Access, Tunneling and File use
(alternatives
to P2P) have
increased.[102]
IFPI Digital Music Report 2012 looks at the result of HADOPI: after
sending over 700,000 notices, “50 per cent said knowledge or receipt of a
notice made
them stop their illegal
activity”.[103]
The awareness factor is working, as “seven in ten users claim they would
stop on receipt of a notification with a sanction
attached”.[104]
The IFPI
report sees three approaches to tackling piracy: “providing attractive
legitimate services, conducting education campaigns;
and rights enforcement...
Access and services are evidently improving...the real area for development is
rights enforcement”.[105]
The introduction of HADOPI was accompanied by an undertaking by the film and
music industries to “development of legal offerings
on the
internet”, “shorten all release windows” and “remove
technological protection measures and digital
rights management from their
products”.[106]
The
French attitude seems to be changing. In a recent interview, Culture Minister
Aurélie Filipetti announced budget cuts
to
HADOPI.[107]
While people halted peer-to-peer file sharing, Time reports that
“as HADOPI acknowledged, the reported drop in peer-to-peer activity was
accompanied by a surge in people saying
they’d turned to direct-download
sites like Megaupload”.[108]
This has led to speculation that HADOPI will either be rescinded or kept but
reduced to a shell.
Similarly, in the UK “it is widely accepted
that [the Digital Economy Act] can only work if implemented alongside attractive
legal content services and educational
incentives.”[109]
The Digital Economy Act will only come into force in 2014, when the online and
mobile environment will presumably be substantially
different from
today.[110]
InternetNZ
points out “Internet users everywhere expect to access content in a quick
and convenient way because Internet technology
makes that
possible.”[111] I would
further add that people are prepared and willing to pay for services, but
if they are simply not available in one country but have been released and
reviewed
in other countries, many Internet users will want to access that
content. For example, it is possible (but the legality is doubtful)
to set up
an iTunes account from New Zealand, which would give access to restricted US
content.[112] That content can be
paid for. But even though a user is ready and willing (and does) pay for it, it
is by way of making a ‘false’
declaration to iTunes (although it
does not appear to directly contravene the iTunes terms and
conditions).[113] If a user
cannot work out how to do this, that is a driver towards file infringement
simply to get access to overseas content that
the user is reading or hearing
about.
Education may be served by the introduction of legislation, but
there still needs to be some work on the access to services. CIFSAA
has
certainly worked as an educational tool to highlight the issue of copyright
infringement, but is a clumsy enforcement regime.
The notices do not carry with
them any real educational message, such as how to prevent file-sharing software
from uploading/downloading
copyrighted files.
There are also
significant other ways to infringe copyright online, and this Act does little to
stem the tide. “Pirates are
migrating to more secure sources, so the only
people [a three-strikes regime] is really punishing are non-pirates and pirates
who
don’t know what they are
doing”.[114] The
Register sums up the common-sense position:
[115]
[Pierre Lescure, head of France’s commission into the ‘Future of
Piracy’] attaches ‘great importance’
to the development of
legal offers, and that the temptations to piracy are so great only a priest
would not yield. ‘The error
of Hadopi was to focus on the penalty’,
he told Le Nouvel Observateur. ‘If one starts from the penalty, it
will fail’, he said, adding that the sanction of disconnection is, for
now, unenforceable.
An enforcement regime is a matter of policy which the
government should carefully look at, and also study the effectiveness of
overseas
responses before making any firm decisions. Wolfgang Kleinwachter
comments that it is ultimately a political question on the stance
to take:
[116]
Either we continue with a free and open internet which has enabled
historically unknown intervention, economic growth, social development
and free
communication, or we will make a U-turn towards a more regulated, restricted,
censored and fragmented Internet where national
policies of governments and
commercial interests of corporations will reduce or strangulate individual
rights and freedoms.
VII Possible Alternatives
CIFSAA does
a poor job of encompassing the interests of rights holders online for anything
other than P2P systems, and there are already
many more infringement
alternatives that have arisen to circumnavigate P2P file sharing. CIFSAA also
does not cover cellular networks,
and given the rise of smartphones/tablets,
this may lead to weaker
protection.[117] On the other
hand, CIFSAA also provides little procedural and rights protection for those who
are accused of infringement.
The narrow focus of CIFSAA is just as well
given the fundamental rights at stake. If the government bows to industry
pressure and
extends coverage to other forms of file-sharing, there will be
further significant rights issues unless the issues in this paper
are addressed.
Given the overseas experience, with France moving to reduce HADOPI’s
coverage, and the 2010 UK legislation still
not in force, the effectiveness of
the New Zealand regime is highly doubtful. This is bolstered by the very low
usage of the regime
by the industry, with RIANZ effectively being the only
participant.
A better enforcement regime is needed. The MED was
initially supposed to review the digital provisions of the Copyright Act in 2013
to: [118]
...assess whether the 2008 amendments encourage the appropriate balance
between protecting intellectual property holders' rights to
encourage innovation
while ensuring there is good access and opportunities to use information on the
internet, which is also important
for innovation.
A review could take
into account the lack of balance that I have suggested. However, this review is
now on hold until the Trans-Pacific
Partnership Negotiations have been
finalised.
A possible approach is put forward by Bonadio and
Danay.[119] This involves a
levy/tax system on users (via ISPs or media that could be used to share files
such as computers, CDs, MP3 players
etc) instead of a cumbersome and
difficult-to-enforce exclusive right system. Such a system would, I suggest,
be equally problematic
to implement and potentially discriminatory against those
not sharing files.
Perhaps a better system is that
put forward very recently by William Wallace at George Washington University.
He decides that a “coalition”
is the best method to strengthen
copyright: [120]
The objective of the coalition will be to compensate rights holders by
levying websites that facilitate P2P file sharing of sound
recordings, and
distributing the collected funds to rights holders in a percentage consistent
with that rights holder’s proportion
of the market.
In return for agreeing to a coalition, the
website will receive immunity from civil and criminal liability.
While
this may be a good solution for websites, it does not solve the problem where a
website is not directly involved, as is the
case with current P2P file-sharing.
However, most torrents are found using a search function. There could be a
‘coalition’
for providers of the search function and software. This
is an area that needs more debate from the technology and legal industries
on
the best method to adopt, but this seems the most practical alternative to
develop legal access.
Spotify (allowing music streaming for a monthly
fee) and Quickflix (movie access for a monthly fee) have been introduced to New
Zealand,
which is a step in the right direction and along the lines proposed by
Wallace.[121]
In terms of
enforcement, the UK position of allowing copyright holders access to infringers
names to conduct a court hearing is a
move in the right direction, and does not
have as many problems as the New Zealand proposition. The US and Australian
approaches
are to have four to six alerts of copyright infringement to encourage
education, after which the ISP may institute “mitigation
measures
including temporary speed shaping, landing page redirection and educational
information”.[122] These
‘soft’ approaches seem less problematic as they attempt to educate
first and enforce second.
To summarise, several CIFSAA provisions are
problematic:
It is hoped that any further
‘fast-track’ regimes that the Government sees fit to introduce do
not clash with the New
Zealand Bill of Rights Act, in particular the freedom of
expression clause. It is also to be hoped that the shortcomings of this
regime
are addressed in the fastest possible timeframe. While the monetary awards
against infringers has not been anywhere near
the maximum award of $15,000, the
potential exists for the Copyright Tribunal to set an award of $15,000 should
they wish.
Remedies for infringement are needed and any form of
infringement is denying the copyright holder of potential income, but the way
the Act has been drafted and
implemented has grave consequences to freedom of
speech and due process. While I do not deny protection needed for copyright,
and
the benefits associated with protection, CIFSAA does not provide adequate
protection for end users. The process is better dealt
with in the courts, and
the shortcomings in the process need to be addressed.
Any regime intended
to discourage unlawful infringement over the internet should be accompanied by
an incentive not to use infringing services by embracing the technology
and providing legal alternatives. The sceptical view is that this may
not be in
the interests of the ‘middle men’ of the entertainment industry, but
the internet has changed our society and
will continue to do so. Comedian Louis
C.K. recently released an album for $5 and made $1 million in the first few days
and “saw
that many people were willing to pay $5 for an album instead of
downloading it illegally”.
[123]
The importance of legal
alternatives cannot be stressed enough. The Government should encourage rights
holders to make available
low-cost online alternatives at the same time as an
enforcement and educational regime, otherwise users will find other ways to
access the content illegally. Any rights enforcement must be equally balanced
with education
and an increase in legal access in today’s global
environment.
I suggest that the presumptions and defences present in the
Copyright Act should still be available to infringing file-sharers, to
protect
and enforce the balance between freedom of expression and copyright that the
Copyright Act addresses. CIFSAA, as a standalone
regime, removes these defences
which work to enhance freedom of expression. Similarly, a fast-track method is
not appropriate when
considering NZBORA and freedom of expression concerns. The
debate on how to protect copyright while still fostering innovation and
creativity in a digital environment needs re-ignition.
Claim no/ Parties
|
Date
|
Infringement details
|
Information provided by respondent
|
Amount awarded
|
RIANZ v Telecom NZ 2592
[2013] NZCOP 1
|
29/01/2013
|
One song triggering the Detection & Warning Notices; one song
triggering the Enforcement Notice
|
Problems uninstalling uTorrent (the peer-to-peer software).
|
Reasonable cost of purchasing the songs: $6.57
Contribution towards IPAP notices: $50 [total cost to the applicant
$75+GST]
Reimbursement of application fee: $200
Deterrent sum: $360 ($120 per infringement)
TOTAL: $616.57
|
RIANZ v TCLE[A]-T5877102
[2013] NZCOP 2
|
05/02/2013
|
One song triggering the Detection & Warning Notices; one song
triggering the Enforcement Notice
|
The sons (8 and 12) were responsible for downloading BitTorrent.
Respondent has ‘very little computer literacy’ and has
now
uninstalled BitTorrent
|
Reasonable cost of purchasing the songs: $7.17
Contribution towards IPAP notices: $50 [total cost to the applicant
$75+GST]
Reimbursement of application fee: $200
Deterrent sum: $300 ($100 per infringement)
TOTAL: $557.17
|
RIANZ v CAL2012-E000614
[2013] NZCOP 3
|
19/02/2013
|
One song on two occasions (triggering two notices); one song on another
occasion (triggering another notice)
|
None – respondent took no part in proceedings
|
Reasonable cost of purchasing the songs: $7.17
Contribution towards IPAP notices: $50 [total cost to the applicant
$75+GST]
Reimbursement of application fee: $200
Deterrent sum: $540 ($180 per infringement)
TOTAL: $797.17
|
RIANZ v TCLE[A]-T6054929
[2013] NZCOP 4
|
21/02/2013
|
One song triggering the Detection & Warning Notices; one song
triggering the Enforcement Notice
|
None – respondent took no part in proceedings
|
Reasonable cost of purchasing the songs: $7.17
Contribution towards IPAP notices: $49.99 [total cost to the applicant
$75+GST]
Reimbursement of application fee: $200
Deterrent sum: $200
TOTAL: $457.16
|
RIANZ v CAL2012-E000609
[2013] NZCOP 5
|
07/03/2013
|
One song triggering the Detection; one song triggering the Warning &
Enforcement Notices
|
Respondent serving in Afghanistan during the relevant time but has since
taken steps to ensure that flat mates do not continue to
file-share.
NB The applicant waived its request for a deterrent sum to be awarded
following this information
|
Reasonable cost of purchasing the songs: $5.97
Contribution towards IPAP notices: $50 [total cost to the applicant
$75+GST]
Reimbursement of application fee: $200
Deterrent sum: $0
TOTAL: $255.97
|
RIANZ v Telecom NZ 3553
[2013] NZCOP 6
|
16/04/2013
|
One song on two occasions (triggering two notices); one song on another
occasion (triggering another notice)
|
Children were responsible. Parents told children not to download, but at
least one child continued to do so. Parents will now supervise
children’s
internet access. Offer to contribute to disbursements incurred.
|
Reasonable cost of purchasing the songs: $6.57
Contribution towards IPAP notices: $50 [total cost to the applicant
$75+GST]
Reimbursement of application fee: $200
Deterrent sum: $60 ($20 per infringement)
TOTAL: $316.97
|
RIANZ v Telecom NZ 3663
[2013] NZCOP 7
|
22/04/2013
|
One song on three occasions
|
Respondent said he was out at the time, and that the song was not on any of
the laptops in the household. He ‘forgot’
about the notices between
when the first and second notices were received, and only took notice when the
third and final notice was
received.
|
Reasonable cost of purchasing the songs: $1.79
Contribution towards IPAP notices: $25 [total cost to the applicant
$75+GST; further reduced from the standard $50 due to poor provision
of
information by IPAP]
Reimbursement of application fee: $200
Deterrent sum: $50
TOTAL: $276.78
|
RIANZ v Telecom NZ 3728
[2013] NZCOP 8
|
27/06/2013
|
One song, on six occasions (triggering three notices, but costing the
applicant six times)
|
None – respondent took no part in proceedings
|
Reasonable cost of purchasing the songs: $14.34
Contribution towards IPAP notices: $100.01 [total cost to the applicant
$150+GST]
Reimbursement of application fee: $200
Deterrent sum: $600 ($100 per infringement)
TOTAL: $914.35
|
RIANZ v CAL2012-E000627
[2013] NZCOP 9
|
01/07/2013
|
One song on two occasions (triggering Detection Notice); and one song on
three occasions (triggering Warning/Enforcement notices)
|
Respondent said her daughter downloaded the tracks and did not understand
how it could be illegal as uTorrent was a legal software
with a legitimate
website. She claimed not to have received the notices, which had apparently
been sent by post and email.
|
Reasonable cost of purchasing the songs: $11.95
Contribution towards IPAP notices: $91.67 [total cost to the applicant
$125+GST]
Reimbursement of application fee: $200
Deterrent sum: $500 ($100 per infringement)
TOTAL: $803.62
|
RIANZ v Telecom NZ 4296
[2013] NZCOP 10
|
16/07/2013
|
One song on two occasions triggering two notices; one song on one occasion,
triggering a third notice.
|
Respondent said that it was someone else who was using the internet
connection, and that someone else was willing to take responsibility.
He also
claimed to take “every reasonable precaution to ensure illegal acts
weren’t performed using the internet connection”.
|
Reasonable cost of purchasing the songs: $7.17
Contribution towards IPAP notices: $50 [total cost to the applicant
$75+GST]
Reimbursement of application fee: $200
Deterrent sum: $300 ($100 per infringement)
TOTAL: $557.17
|
RIANZ v Telecom NZ 4366
[2013] NZCOP 11
|
19/07/2013
|
One song on ten occasions, triggering the three notices
|
After the first warning, respondent did not go back on uTorrent. After
receiving the second warning, respondent replied saying it
was a mistake. After
third warning, respondent uninstalled software when he/she realised what
‘seeding’ meant. Respondent
under severe financial
difficulties.
NB The applicant waived its request for a deterrent sum to be awarded
following this information
|
Reasonable cost of purchasing the songs: $23.90
Contribution towards IPAP notices: $166.69 [total cost to the applicant
$250+GST]
Reimbursement of application fee: $200
Deterrent sum: $0
TOTAL: $390.59
|
RIANZ v TCLE[A]-T6518151
[2013] NZCOP 12
|
23/07/2013
|
One song on four occasions, triggering the three notices
|
After the first warning, respondent checked all computers and did not find
the file. Respondent did not know what file-sharing software
was.
After the second notice, (s)he contacted the IPAP, who said they would send
out some information (which was never received).
After the third notice, respondent again talked to their IPAP, who informed
them of what file-sharing software was and how to find
it.
After conducting a further thorough search, they realised that the software
on their son’s girlfriend’s laptop, which
was ‘seeding’
using their internet connection whenever she visited.
NB The applicant waived its request for a deterrent sum to be awarded
following this information
|
Reasonable cost of purchasing the songs: $9.56
Contribution towards IPAP notices: $66.67 [total cost to the applicant
$100+GST]
Reimbursement of application fee: $200
Deterrent sum: $0
TOTAL: $276.23
|
RIANZ v Telecom NZ 2688
[2013] NZCOP 13
|
01/08/2013
|
One song on five occasions, triggering the three notices
|
Respondent challenged enforcement notice, questioning the IP address. The
IPAP confirmed his IP address at the time the notices were
issued. Respondent
said no one was at home when the notices were issued. No further argument after
this initial challenge.
|
Reasonable cost of purchasing the songs: $11.95
Contribution towards IPAP notices: $99.98 [total cost to the applicant
$125+GST]
Reimbursement of application fee: $200
Deterrent sum: $250 ($50 per infringement)
TOTAL: $561.93
|
RIANZ v Telecom NZ 3760
[2013] NZCOP 14
|
20/08/2013
|
One song on two occasions (triggering the Detection & Enforcement
Notices); and one song, on one occasion (triggering the Warning
notice)
|
Main submission from respondent was not taken into account as it was filed
after the date for submissions was due
|
Reasonable cost of purchasing the songs: $4.78
Contribution towards IPAP notices: $50 [total cost to the applicant
$75+GST]
Reimbursement of application fee: $200
Deterrent sum: $150
TOTAL: $404.78
|
RIANZ v Telecom NZ 4451
[2013] NZCOP 15
|
02/09/2013
|
One song on three occasions, triggering the three notices
|
Respondent claimed that his sons had deleted uTorrent ‘last
year’ (i.e. 2012), and that they could not locate the application
or the
song - he said “we are not computer experts but know enough to know both
are not on our computer”. Declined to
appear in person as respondent said
it was “pretty difficult to argue with the legal resources they
have.”
|
Reasonable cost of purchasing the songs: $7.17
Contribution towards IPAP notices: $50 [total cost to the applicant
$75+GST]
Reimbursement of application fee: $200
Deterrent sum: $300 ($100 per infringement)
TOTAL: $557.17
|
RIANZ v CAL2013-E000737
[2013] NZCOP 16
|
04/09/2013
|
One song on two occasions (triggering Detection & Warning Notices); one
song, on one occasion (triggering the Enforcement notice)
|
Respondent acknowledged liability. Tribunal pointed out that $250
initially sought from applicant as a deterrent sum; this was subsequently
changed to $550 – had the respondent known this, respondent might have
made more of an effort.
|
Reasonable cost of purchasing the songs: $7.17
Contribution towards IPAP notices: $50 [total cost to the applicant
$75+GST]
Reimbursement of application fee: $200
Deterrent sum: $250
TOTAL: $507.17
|
RIANZ v TCLE[A] T7364885
[2013] NZCOP 17
|
04/09/2013
|
Up to four songs on eleven occasions, triggering the three notices.
|
Respondent claimed to have uninstalled uTorrent after the first notice.
After the second notice, respondent realised it had not uninstalled
correctly,
so respondent asked a friend to do it. After third notice, respondent contacted
IPAP who told her how to uninstall it
correctly. Respondent now says “I
will only use my computer for Google searches, emails etc. from now
on”.
|
Reasonable cost of purchasing the songs: $26.29
Contribution towards IPAP notices: $208.35 [total cost to the applicant
$275+GST]
Reimbursement of application fee: $200
Deterrent sum: $0
TOTAL: $509.64
NOTE: Tribunal considered that the above was a sufficient penalty
without adding a further deterrent sum.
|
* Oliver Sutton is in his final year of studying a LLB (Hons) at the
University of Auckland. He wrote this paper as part of the honours
component of
his law degree.
1 Metro-Goldwyn-Meyer Studios Inc v Grokster
Ltd (2005) 64 IPR 645 (USSC); Universal Music Australia Pty Ltd v Sharman
License Holdings Ltd [2005] FCA
1242.
[2] Ministry of Commerce
Cabinet Paper Illegal Peer-to-Peer File Sharing: Proposal
(undated).
[3] See, for example,
Capitol Records Inc. v. Thomas 579 F. Supp. 2d 1210 (D. Minn. 2008). A
succinct summary of proceedings and awards is provided on the “Capitol v
Thomas” Wikipedia page.
[4]
Supplementary Order Paper 2008 (193) Copyright (New Technologies) Amendment Bill
(102-2).
[5] Michael Fox
“Protest over ‘ludicrous’ internet law at Parliament”
Stuff (online ed, Wellington, 3 March
2009).
[6] Claudia Geiringer, Polly
Higbee and Elizabeth McLeay What’s the Hurry? Urgency in the New
Zealand Legislative Process (Victoria University Press, Wellington, 2011) at
54; Sascha Mueller “The Busy House: Alternatives to the Urgency
Motion”
(2011) 9 NZJPIL 167 at 189; and also Sascha Mueller
“Where’s the Fire?: The Use and Abuse of Urgency in the Legislative
Process” [2011] CanterLawRw 19; (2011) 17 Canta LR 316 at
317.
[7] See David Farrar
“Use of Urgency” (12 April 2011) Kiwiblog
<www.kiwiblog.co.nz>. Also see above n 6 at Chapter 6 and Mueller
“Where’s the Fire?: The Use and Abuse of Urgency in the Legislative
Process” above n 6 at
326.
[8] See, for example, the
comment “The law was widely ridiculed when National rushed it through
Parliament under urgency”
in NZPA “Copyright Law ‘will not
change’” Stuff (online ed, Wellington, 7 June 2011).
[9] Above n 6 at 142 and Mueller “Where’s
the Fire?: The Use and Abuse of Urgency in the Legislative Process” above
n 6 at
319.
[10] The Hon Simon Power
famously referred to the internet as the “Wild West” in a review of
New Media: Simon Power “Law
Commission to review regulatory gaps around
‘new media’” (press release, 14 October 2010). Jonathon Young
also
compared today’s internet to Skynet from The Terminator: (12
April 2011) 671 NZPD 18099. In the Committee Stage, Katrina Shanks said
alarmingly that “I do not think people understand it is ille-gal to file
share”:
(12 April 2011) 671 NZPD 18101. The debate was referred to as
having “surreal levels of technical ignorance”: Chris Keall and Alex
Walls “Internet
file sharing law passes after loopy debate” The
National Business Review (online ed, New Zealand, 13 April
2011).
[11] For example, see
Keall and Walls, above n 10:
“Opponents have re-ignited a campaign”; and “Controversial
internet file-sharing law passed” Stuff (online ed, Wellington, 14
April 2011).
[12] An IP, or
Internet Protocol, address is a unique identifier assigned to a single internet
connection. For example, several computers
may connect to the same internet
connection in a household or office, and all will be allocated the same IP
address.
[13] Internet Protocol
Address Provider is defined in Copyright Act 1994, s 122A and is essentially a
primary provider of the IP such
as TelstraClear, Orcon
etc.
[14] WiFi hacking: Someone
‘cracks’ a WiFi connection illegally and is then able to use it
without your knowledge. Trojaned
machines: A computer with a ‘Trojan
horse’ infection which gives a hacker remote access to your computer and
can infringe
copyright using your computer without your knowledge, thus using
your IP address.
[15]
Copyright Act 1994, s
122C(5).
[16] Media CAT Ltd v
Adams [2011] EWPCC 6, [2011] FSR 28
(“ACS:Law”).
[17] As
summarised in Kelly Fiveash “Patent judge hits out at legal tactics used
against file-sharers” (9 February 2011) The
Register
<www.theregister.co.uk>.
[18]
Above n 16 at
[30].
[19] Copyright Act 1994, s
43.
[20] Two cases that raise
these issues are Recording Industry Association of New Zealand Inc
(“RIANZ”) v Telecom NZ 2666 [2013] NZCOP 13; RIANZ v Telecom
NZ 4451 [2013] NZCOP 15.
[21]
Section 122O.
[22] Copyright
(Infringing File Sharing) Regulations 2011, s
12.
[23] See Schedule One
below.
[24] RIANZ v Telecom NZ
3728 [2013] NZCOP 7; RIANZ v Telecom NZ 3760 [2013] NZCOP
14.
[25] RIANZ “Submission
to the Ministry of Economic Development on the Copyright (Infringing File
Sharing) Regulations – Fee
Review” at [40]-[49]. The submissions
are dealt with in more detail
below.
[26] At
[45].
[27] As defined in
Copyright Act 1994, s 122A.
[28]
Michael Piatek, Tadayoshi Kohno and Arvind Krishnamurthy “Challenges and
Directions for Monitoring P2P File Sharing Networks,
or Why My Printer Received
a DMCA Takedown Notice” (1 June 2008) University of Washington
Technical Report available online at
<http://dmca.cs.washington.edu>
at section 6.
[29] At section
2.
[30] Examples are Rick Shera “NZ's Copyright Proposal: Guilty Until You Prove You're Innocent” (5 November 2010) ) l@w.geek.nz <lawgeeknz.posterous.com> and the “presumption of guilt” referred to in Chris Keall “Google wants NZ file sharing law changed” The National Business Review (online ed, New Zealand, 18 July 2011).
[31] Patricia Ieong
“Legislation Notes: The Copyright (Infringing File Sharing Amendment Act
2011): A Fair and Effective Regime?”
[2011] AukULawRw 13; (2011) 17 Auckland U L Rev
313.
[32] Copyright Act 1994, s
126.
[33] For example, WiFi
hacking, trojaned machines and problems with the detection
process.
[34] Michael Murtagh
“The FCC, the DMA, and Why Takedown Notices Are Not Enough” (2009)
61 Hast L J 233 at 257.
[35]
Keall, above n 30.
[36] Google submission on TCF
Draft ISP Copyright Code of Practice available at <www.tcf.org.nz> at
9.
[37] Above n 16.
[38]
(26 January 2010) 716 GBPD HL 1309.
[39] Jane Wakefield “Net
Piracy Gets its Day in Court” (25 January 2011) BBC News
<www.bbc.com>.
[40]
Copyright Act 1994, s 130.
[41]
Copyright Act 1994, s 122M.
[42]
Copyright (Infringing File Sharing) Amendment Bill (119-2) (explanatory note) at
4-5.
[43] NZFACT was established
by the Motion Picture Association. NZFACT has declined to issue fines in such a
“tiny market”:
Chris Keall “One of the First ‘Third
Strike’ Notices Withdrawn; No Movie Notices Sent” The National
Business Review (online ed, New Zealand, 19 April 2012).
[44] Copyright Act 1994, s
122L.
[45] Report of the
Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression, Frank La Rue A/HRC/17/27 (16 May 2011) at
D.
[46] Cabinet Economic Growth
and Infrastructure Committee “Illegal Peer-to-Peer File Sharing”
(undated) Ministry of Business,
Innovation and Employment
<www.med.govt.nz>.
[47] P Bernt
Hugenholtz “Copyright and Freedom of Expression in Europe” in:
Rochelle Dreyfuss, Harry First and Diane Zimmerman
(eds) Expanding the
Boundaries of Intellectual Property (Oxford University Press, Oxford,
2001).
[48] Graham Smith
“Copyright and Freedom of Expression in the Online World” (2010)
5(2) JIPLP 88.
[49] At
89.
[50] R (on the application
of British Telecommunications Plc) v Secretary of State for Business, Innovation
and Skills [2011] EWHC 1021 (Admin), [2011] 3 CMLR 5 at
[249].
[51] AP “US Senators
Back Down on Online Piracy” Stuff (online ed, Wellington, 20
January 2012).
[52] Sarah Konores
“United Nations Declares Internet Freedom a Basic Human Right” (8
July 2012) SmartPlanet <www.smartplanet.com>
and The promotion,
protection and enjoyment of human rights on the Internet GE.12-14710
A/HRC/20/L.13 (29 June 2012).
[53] Above n 45, at
[20].
[54] Above n 45, at [65]. The Special Rapporteur
outlines that “In some economically developed States, Internet access has
been recognized
as a right...Estonia passed legislation in 2000 declaring
Internet access a basic human right...France effectively declared internet
access a basic human right in 2009...Finland passed a decree in 2009 stating
that every Internet connection needs to have a speed
of at least one Megabit per
second”.
[55] New Zealand
Bill of Rights Act 1990, s
14.
[56] Enrico Bonadio
“File sharing, Copyright and Freedom of Speech” (2011) 33 EIPR 619.
[57] At
7.
[58] New Zealand Bill of
Rights Act 1990, s 5.
[59] Human
Rights Act 1998 (UK).
[60]
Schedule 1.
[61] For a concise
explanation, see Christopher Williams “Ofcom presses ahead with Digital
Economy Act piracy crackdown” The Telegraph (online ed, London, 26
June 2012).
[62] Above n 50. The case went on appeal, but the issue
surrounding proportionality of the legislation to freedom of speech not
discussed as the
appeal mainly concerned issues surrounding ISP
liability.
[63] At
[203].
[64] At
[210].
[65] At
[215].
[66] Bart Cammaerts and
Bingchun Meng “Creative Destruction and Copyright Protection: Regulatory
Responses to File-sharing”
(March 2011) LSE Media Policy
Project.
[67] At
2.1.
[68] At
1.2.
[69] Copyright (Infringing
File Sharing) Regulations 2011, reg
12(3)(b).
[70] RIANZ v Telecom
NZ 3663 [2013] NZCOP 7 at
[39].
[71] Haute
Autorité pour la diffusion des œuvres et la protection des droits
sur internet.
[72] Nicola
Lucchi “Access to Network Services and Protection of Constitutional
Rights: Recognizing the Essential Role of Internet
Access for the Freedom of
Expression” (2011) 19 Cardozo J Int’l & Comp L 645 at
654.
[73] As summarised in above
n 72.
[74]
Conseil constitutionnel [Constitutional Court], decision 2009-580, 10
June 2009, English version available at
<http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/2009_580dc.pdf>
at 16.
[75] At
12.
[76] “French
Downloaders Face Government Grilling” (27 July 2011) BBC News
<www.bbc.com>.
[77] R v
Poumako [2000] NZCA 69; [2000] 2 NZLR 695 (CA) at
[37].
[78] At
107.
[79] R v Pora [2000] NZCA 403; [2001]
2 NZLR 37 (CA).
[80] Brooker v
Police [2007] NZSC 30, [2007] 3 NZLR
91.
[81] Morse v Police
[2011] NZSC 45, [2012] 2 NZLR
1.
[82] Hansen v R [2007]
NZSC 7, [2007] 3 NZLR 1.
[83]
Approved in Commerce Commission v Air New Zealand Ltd [2011] NZCA 64,
[2011] 2 NZLR 194 at [65]- [66], but looking at Parliament’s meaning at
step 1 instead of the natural
meaning.
[84] Above n 45 at
[24].
[85] Robert Danay
“Copyright vs. Free Expression: The Case of Peer-to-Peer File-Sharing of
Music in the United Kingdom" (2005) 10
IJCLP Web-Doc
02-10-2005.
[86] At page
20.
[87] There has been a
“lack of quality data” as identified by the Regulatory Impact
Statement annexed to above n 46. An
NZFACT survey found that users say they will stop file-sharing if faced with
notices: “‘Skynet’ law will stop
most illegal
downloading” (1 September 2011) 3 News <www.3news.co.nz>. But the
question does not ask whether people
will stop infringing completely.
[88] Creative Freedom
“Submission to the Ministry of Economic Development on the Copyright
(Infringing File Sharing) Regulations
– Fee Review”.
[89] Examples cited are the band
Wilco in 2001, and Radiohead’s Kid A track released in 2000 on
Napster which was downloaded for free in vast numbers, but still reached top of
the US sales charts. More
recent examples are Radiohead’s 2007 In
Rainbows and 50 Foot Wave’s January 2012 release of With Love from
the Men’s Room.
[90]
Above n 85 at page
31.
[91] At page
27.
[92] At page
26.
[93] At page
36.
[94] See Section
VII.
[95] “Submissions to
the Ministry of Economic Development on the Copyright (Infringing File Sharing)
Regulations – Fee
Review”.
[96] As defined in
Copyright Act 1994, s 122A.
[97]
The cost is a maximum of $25 to lodge a notice with the IPAP who passes the
notice on to the account holder, unless during a quarantine
period and the cost
to apply to the Copyright Tribunal is $200: Copyright (Infringing File Sharing)
Regulations 2011, s 7-8.
[98] The
New Zealand Society of Authors “Submission to the Ministry of Economic
Development on the Copyright (Infringing File Sharing)
Regulations – Fee
Review” at Q2.
[99] RIANZ
submission at [52] and
[62].
[100] TelstaClear
submission at Q23.
[101]
Telecom submission at
Q23.
[102] “Impact of the
Copyright Amendment Act at NZNOG” (31 January 2012) WAND Network Research
Group, available online at
<www.wand.net.nz>.
[103]
IFPI Digital Music Report 2012 (January 2012) at
17.
[104] Ipsos MediaCT
findings in above n 103 at
19.
[105] Alexandra Duboff
“IFP Digital Music Report 2012 – What’s the Story?”
(2012) 23 Ent L R 96.
[106]
InternetNZ “Submission to the Ministry of Economic Development on the
Copyright (Infringing File Sharing) Regulations –
Fee Review” at
5.
[107] Bruce Crumley
“Why France Socialists Won’t Kill Sarkozy’s Internet Piracy
Law” (2 August 2012) Time
<world.time.com>.
[108]
Above n 107.
[109]
Ed Baden-Powell and Luke Anthony “Digital Economy – act 2”
(2012) 23 Ent L R 130.
[110]
Bobbie Johnson “UK Says Three Strikes is Coming, but Not Until 2014”
(26 June 2012) Gigaom
<gigaom.com>.
[111] Above
n 109 at
5.
[112] Jeffry Thurana
“How To Create A US iTunes Account (& Access US-Only Contents) Without
A Credit Card” (17 May 2011)
MakeUseOf
<www.makeuseof.com>.
[113]
NZ iTunes terms and conditions, accessible at
<http://www.apple.com/legal/itunes/nz/terms.html>
.
[114]
Drew Wilson “HADOPI Blamed for ISP Rate Hikes in France” (1 January
2011) ZeroPaid
<www.zeropaid.com>.
[115]
Richard Chirgwin “France backs away from Hadopi” (6 August 2012) The
Register
<www.theregister.co.uk>.
[116]
Wolfgang Kleinwachter “Internet governance outlook 2012: cold war or
constructive dialogue?” (2012) 17 Comms L
14.
[117] As particularly
highlighted by submissions to the Ministry of Economic Development on the
Copyright (Infringing File Sharing) Regulations
from the Society of Authors, the
Copyright Council submission and Copyright
Licencing.
[118] Chris Keall
“Ministry to Adams: Concern Copyright Law Protects Outdated Business
Models” The National Business Review (online ed, New Zealand, 6
July 2012).
[119] Above n 56; above n 85.
[120]
William Wallace “”Authorizing Piracy on the Cyber Seas: An
Initiative to Compensate Rights Holders of Sound Recordings
by Making Music
Free” (2012) 44 Geo Wash Int’l L Rev 141 at
157-158.
[121] Above n
120.
[122] Juha Saarinen
“AFACT Defends French Three-Strikes Regime” (10 August 2012) iTnews
<www.itnews.com.au>.
[123]“Louis
C.K. Releases New $5 Special Online” (11 May 2012) Inquisitr
<www.inquisitr.com> and “Louis C.K. Tops
$1 Million From Beacon
Theater Special, Gives Half to Charity, Staff” (22 December 2011)
Inquisitr <www.inquisitr.com>.
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