Recently, Parliament passed into law some changes to the Copyright Act to account for the modern technological environment. Some of those changes were good, some bad, and I’ve blogged about them many times before.

But the most controversial change to the Copyright Act made was the insertion of section 92a, which says, in effect, that ISPs have to have a policy to implement cutting off people’s Internet if they are accused of repeatedly infringing copyright.

This is the first issue I have ever seen get the entire Internet and IT industry in agreement.

All the participants at the TVNZ / InternetNZ debate last month were asked about this issue. National’s Maurice Williamson agreed it was a bad thing and said he didn’t know why he had voted for it. David Cunliffe, Minister for ICT, said he would set up a meeting between Internet folks and ministers to discuss it. That meeting happened yesterday and these are my notes from it.



The ministers at the meeting were David Cunliffe and Judith Tizard, who is Associate Minister of Commerce and the responsible minster for copyright. From the Internet side, there were Keith Davidson of InternetNZ, Rick Shera (a lawyer who has done a lot of work in this area), Ernie Newman of TUANZ, Jamie Baddeley of ISPANZ, Ralph Chivers of the TCF, Paul Matthews of the Computer Society, and yours truly carrying an NZOSS banner. Also there were officials from MED, from DPMC and a few ministerial staff. It was a small room and very cosy.

The meeting was set down for 45 minutes from 3:45. When it opened, Judith Tizard spent 30 minutes telling us why the change had to be made. She began by strongly expressing her anger that we had complained to her at this stage in the proceedings. None of us, she said, had been to see her before this on this topic. When we protested that we had worked with the Select Committee, which had removed this provision – and balanced it with one which made licence holders liable for false accusations – she said that this was completely inappropriate of the Select Committee, because Cabinet had already decided this was going ahead. We should not have been surprised, we were told, that this provision was reinserted by the government at the last minute before the bill was passed. (It’s worth noting here that Judith has been to the two New Zealand Foo Camps and was engaged roundly on copyright both times.)

She set forth strong views about how the launch of Sione’s Wedding had been ruined, about how studios in Auckland were running out of work, and about how artists were mortgaging their homes to make films and music and were not making any returns on their investments, all, she said, because of Internet piracy.

One of the Internet group tried to ask her whether the term piracy was appropriate, but she insisted that it was because people’s livelihoods were at stake. She also said that, since the Internet Service Providers were making money from providing Internet they were making money from copyright infringements and they have to find a way to deal with it. This was couched in very strong language.

When we suggested that natural justice would imply that it was unreasonable to withdraw Internet access based on an accusation, she reiterated her position that something had to be done and that ISPs had to do it. ISPs, she said, need to negotiate with the licence holders to put in a regime to prevent copyright infringements. The licence holders’ associations had assured her that they would not be unreasonable.

In response to being told that it is technically impossible for ISPs to tell what people are doing, Judith said that it had been done for child pornography and that ISPs need to apply the same standards. It was pointed out that the state defines objectionable material, possession of which is a crime, but there’s no equivalent definition for copyright, infringement of which is a civil matter to be determined by courts.

It was said several times that ISPs have liability in both directions because of this law. The message was: deal with it. David Cunliffe made it clear that the law change is going live on 28th February regardless. He urged ISPs and licence holders organisations to agree policy.

David Cunliffe left the meeting at 4:30 as he had foreshadowed. I left soon after to take my family on holiday. I understand that little more took place after that except reiterations of positions.