Not bad

The Government has released their proposals for S92A, and I have to say that the proposal is not too bad. Some aspects not great, but some aspects are pretty fair.

The press release has a Q&A, but I recommend those interested read the full Cabinet paper.

My initial thoughts are:

Good:

• Three notices needed within 9 months to go to Tribunal
• Users can stay anonymous and send response via ISP
• Users remain anonymous at Tribunal stage unless they lose
• Notices must be sent to ISPs within 20 days of alleged infringement, so a huge number can not be collated over months and then piled into an ISP
• Rights holders will have to pay a fee per notice, to cover their admin costs in issuing the notices
• Termination/Suspension is an option only for courts, not the tribunal (or ISPs)
• Termination is defined as suspension of that account for up to six months so law is clear
• A new definition of ISP to be drafted for S92A only, which will be narrower then current definition which includes employers, bloggers etc.
• ISP given statutory protection where they comply with the Act and any court orders
• Law not to come into effect until six months after amendments passed
• 92A to be available for P2P infringing only, and material under 92C excluded from gambit of 92A

Not so good:

• Time between 1st and 2nd notice can be as little as 10 working days and 10 again between 2nd and 3rd. That means you can get to strike three in a month.
• The fee rights holders pay to ISPs is set by Govt and will not include capital costs of modifying systems
• No sanctions on right holders for false notices
• Termination/Suspension is still an option

Overall I have to say a huge improvement over the original 92A, and even a slight improvement over the discussion proposal.

I do think some further changes are desirable, and if a bill appears based on the paper, will submit for changes at select committee level.

A critical issue will be the level of the notice fee – too low and it will not provide a incentive for rights holders to be restrained in their allegations, and also it may not properly compensate ISPs for their costs.

I think the major change needed is the time frames for notices. They need to be such that a notice has to be based on an infringement that has occurred after one is sure they have received the previous notice. At present it does not do that. You should only get to strike two, if you have clearly continued infringing after receiving the first notice, and likewise strike three should only occur, if you continued after receiving the second notice.

But overall as I said, this is not too bad. Simon Power and officials have done a pretty good job in a complex area. But again that is not to say some further enhancements are not desirable, and I am looking forward to further engagement in the process.