The TCF Copyright Code

Most readers will be aware that a provision of the new copyright law will soon come into force, requiring ISPs to terminate repeat infringers of copyright. The law is badly drafted and does not define how this might work.

In an attempt to give some certainity to ISPs and users, the Telecommunicatons Carriers’ Forum has prepared a Code of Practice for ISPs on how to implement the law.

The code is a draft one, and feedback is sought on it by 5pm Friday 6 March 2009. This affects not just users, but almost every business in NZ, as under the law they could have their Internet access cut off, if their staff are alleged to have downloaded copyrighted material.

The full draft code is here. Overall it is pretty good, as it means you will not get disconnected just on the basis of allegations of infringement, if you dispute the allegation. I can see some fish hooks in it though, and will do a submission. Under the code the process for termination is as follows:

1. Copyright Holder sends a Copyright Holder notice to ISP, with details of IP address or URL alleged to infringe
2. ISP sends an (Orwellian sounding) Education Notice to the user who has that IP address or URL, telling them copyright infringement has been alleged.
3. The user can either do nothing, which signifies acceptance of the infringement, or can dispute they have infringed, or claim to be a downstream ISP with users of their own (many business can claim this)
4. If you claim to be a downstream ISP, your identity will be revealed to the copyright holder, and under the law you yourself are required to have a policy to terminate users who infringe copyright. So there are risks in being a downstream ISP.
5. If you dispute you have infringed, this is sent to the Copyright Holder and the infringement education notice is effectively revoked. The Copyright Holder does not learn your identity, however they could prosecute you in court, and that would require your ISP to them identify you.
6. If you do not dispute your education infringement notice, then you basically at month end get a black mark. You only get one black mark per month regardless of the number of alleged infringements.
7. After you get three black marks, your fourth black mark is a final warning (if all within 18 months).
8. If you infringe after a final warning, you get terminated.

The full code has more details. Now some people may think hey I can infringe all I want during a month, and I will only get one black mark. That is so, but remember an ISP can decide to terminate you on its own initiative if it regards you as a serial infringer. The code is the process to be followed for mandatory termination (ie where the ISP is forced to terminate), and doesn’t stop ISPs from acting quicker.

As I said, the code is not too bad. However the Rights Holders don’t like the fact that if you dispute their allegation of infringing, that the ISP will not be forced to terminate you, and their only recourse is to go to court to prove your guilt.

They have come up with a novel solution. That if you dispute the allegation of infringing, then your details should be handed over to them, and they should decide whether your defence has any validity. And if they decide it does not, then the infringement notice counts as a step towards being terminated.

So the copyright holders, under their counter-proposal, would be the prosecution, the judge and the jury. The poor old ISP would still be the executioner though.

The TCF is going to consider their counter-proposal, so I would advocate that people put in a submission specifically on the counter-proposal.

As I said above, I hope to blog my submission in a week or two.