LIBRARY AND INFORMATION ASSOCIATIONOF NEW ZEALAND AOTEAROA (LIANZA)

Submission on theCopyright (Infringing File Sharing)

Amendment Bill

To the Commerce Committee

(1)

(2)

(3)

(4)

(5)

LIANZA, the Library and Information Association of New Zealand Aotearoa / Te RauHerenga o Aotearoa, representing 413 public, educational, commercial, industrial, legal,health and government libraries in New Zealand, welcomes the opportunity to make thefollowing Submission on the Copyright (Infringing File Sharing) Amendment Bill.

LIANZA acknowledges the very considerable improvement in the provisions of thisBill, as compared with the earlier section 92A as inserted by the Copyright (NewTechnologies) Amendment Act 2008 into the Copyright Act 1994. LIANZA isespecially pleased that the new definition of ISP given in section 122A(1) is intended toexclude libraries, universities, schools and similar organisations.

LIANZA particularly appreciates that its Submission dated 3 August 2009 on theSection 92A Review Policy Proposal Consultation Document has been taken intoaccount in framing the new Amendment Bill.

Nevertheless, LIANZA is disappointed that the Amendment Bill, like all New Zealandcopyright law, fails to take cognisance of the realities of the rapidly−changing digitalenvironment which currently prevails. For example, the Amendment Bill appears toassume that Internet users will have only one Internet service provider (ISP), whereas infact users may utilise multiple ISPs in the course of a day − for example, a residentialconnection at home, a LAiN at their place of employment, a mobile broadband or apublic WiFi connection while on the move. The Amendment Bill may be setting up aregime that will be obsolete as soon as it is implemented.

LIANZA is also concerned that the Amendment Bill is based on disconnection (albeitwith safeguards), which is both punitive and ineffective. LIANZA firmly believes thatone of the principal purposes of copyright law is to encourage the dissemination andsharing of information, not to inhibit these, which is what the Amendment Bill appearsto do. The Internet can be thought of as a "cloud" of networks: if the ultimate sanctionin the Amendment Bill is to cut off alleged infringers' access to the Internet, it is not atall clear which wisp of the Cloud such users will be cut off from.

SPECIFIC CONCERNS

Users

(6) Sections 122A and 1220 refer to "the user", but nowhere is this term defined. LIANZAsubmits that, in the library and educational environment, a clear distinction needs to bedrawn between an "account holder" (an organisation which has an account with an ISP)and a "user" − a person who uses the Internet services made available by an accountholder. An account holder such as a school, university or library may, of course, havemany thousands of users.

(7) More particularly, it is essential that the Amendment Bill states very clearly that allegedrepeat infringement at a specific IP address owned by an account holder must relate toone user only, and not to multiple different users. Single instances of alleged copyrightinfringement by different users must not be treated as repeat infringements.

(8) Therefore, in section 122N(1)(a), LIANZA recommends it should be clarified that theTribunal must be satisfied not only that the alleged copyright infringements occurred atan IP address of the account holder, but also that the repeat infringements were by thesame person.

(9) This distinction is hinted at in section 1220(3)(b), which states that the District Court"may" consider "the identity (if known) of the user who engaged in the infringementsidentified in the notices". There are two different points here: (i) the issue of whetherit is one person, or several different people using the one IP address, who undertook thealleged infringements; and (ii) the problem that, at least in the public library context, itwill usually be the case that the account holder (the library) will not be able to identifythe person or persons who are alleged by the copyright owner to have breached theircopyright.

(10) In LIANZA's view, at every level of the infringing file sharing regime (notices,Copyright Tribunal and District Court) the onus must be on the copyright owner toshow that the alleged repeat infringements are by one person, not by several differentpeople using the one IP address.

(11) And further, at every level of the infringing file sharing regime it must be an acceptabledefence that, for organisations such as libraries, it may simply not be possible toidentify alleged infringer(s) using public−access Internet computers.

(12) This is not to mitigate the obligation that libraries have to minimise copyrightinfringement on library−supplied Internet−access computers: it is accepted that librariesmust take all reasonable and practicable steps to minimise copyright infringement intheir institutions, and be able if required to demonstrate to copyright owners, theCopyright Tribunal and District Court that they have done so. LIANZA has taken theresponsibility of preparing guidelines for libraries, to help them administer Internet usein a manner that respects copyright. But LIANZA considers it should be recognised inthe Amendment Bill that taking all reasonable and practicable steps to minimisecopyright infringement is a defence against charges of liability.

(13) It must continue to be the case that fair dealing continues to be recognised as a lawfulexception to copyright infringement.

Confidentiality

(14) LIANZA welcomes the requirement of confidentiality, as specified for example insection 122Q(3). LIANZA believes it is essential that this confidentiality bemaintained, and not in any way be diluted.

payable by copyright owners

Section 122R refers to fees payable by copyright owners to ISPs, and in sub−section (2)indicates that such fees may be prescribed by regulation. Copyright owners will ofcourse wish to minimise such fees. As account holders and substantial users of ISPservices, libraries are concerned that fees charged to copyright owners should besufficient to meet all costs incurred by ISPs in participating in the infringing file sharingregime. If this is not so, ISP clients may end up paying increased charges to meet anyunrecovered ISP costs, which is not acceptable.

Oral submission

(16) LIANZA would like to appear before the Committee, to make an oral submission.

Tony MillettChair, LIANZA Standing Committee on Copyright

10 O'Neills AvenueTakapunaAuckland 0622

Phone (09) 4881 321Email tony.millett(ālxtra.co.nz

for

Barbara Garriock

PresidentLibrary and Information Association of New Zealand Aotearoa /Te Rau Herenga o Aotearoa

1O May 2010

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