Copyright( Infringing File Sharing) Amendment Bill

I have mixed feelings about this Bill coming before the House today.

The House is in urgency, and given that its been sitting on the order books for months, there’s nothing about today or tomorrow that requires it suddenly to be passed quickly.

This Government uses urgency excessively. Some recent statistics compiled by my colleague Grant Robertson bear this out:

In just over two years 17 bills have been passed without referral to a select committee, compared with five or fewer in the full three years of the three previous Parliaments. There are reasons to justify this from time to time. But not to the extent.

One thing about the Copyright Bill is sure. It did go to select committee, there was robust debate in the selct cttee and throughout the community. There has been much to-ing and fro-ing on it. And the outcome is not perfect.

But it is better than the legislation that was passed in 2008 with the support of both sides of the House.

Labour supports this Bill. We still have reservations and I’ll be speaking about them.

But I also want to say that in some ways I’m pleased that this legislation has come back before the House.

It was the first issue I took on in my portfolio issue in communications and IT. I realised pretty quickly that the rising discontent and dismay among the community which represents new and emerging technologies and the creation and distribution of digital content had to be addressed.

And that we parliamentarians were mostly out of touch.

If I thought I’d get a straight answer I’d ask you all right now to put your hands up if you have or if you know someone who has illegally downloaded material.

I’d like to think that many of us, as a result of the discussions that have gone on around this Bill and the wider context are a bit more in touch with actual reality of what people are actually doing on the internet. It created a lot of interest. There were 237 submissions including 31 supps.

In coming years the internet will become increasingly more essential in all of our lives. Disconnection is a disproprotionate remedy for file sharing. We needed a law. But we didn’t need a bad law.

This Bill represents better law. I know it wont please everyone, in fact there’s parts that some submitters still oppose.

There are times when it’s important to negotiate to get an outcome that is less bad than taking a high moral stand and ending up with something that you fundamentally can’t live with.

Negotiation isn’t a one-way street and I’m pleased to say that my experiences with Minister Simon Power on this Bill have been constructive.

Labour is only prepared to support this bill through its remaining stages due to a compromise we reached with National – no New Zealander will have their Internet connection suspended as a result of this bill.

Labour’s preferred option was to completely omit account suspension, but National’s position was intractable. Account suspension remains in the bill and could theoretically be used in the future, but any Minister who implements termination will have to wear the consequences.

Rather than oppose it outright, we preferred to compromise to ensure New Zealanders are not denied access to the internet, something which many people heavily rely on today.

If the suspension penalty is used, the Commerce Minister will have to enact the clause by Order in Council, putting the onus on the creative industries to prove there is a case to terminate access and that the notice system is not working.

So let’s be very clear. If it wasn’t for this compromise, then the Bill that would be before us today means NZers internet accounts could have been cut off for six months. Labour would have opposed it. It would have been a bad law.

So while the high moral ground might be a great place, it’s not much good when you’re left standing on your own and the actual world moves on around you.

Labour wanted to have an impact on this Bill and we have. We haven’t got everything we wanted.

We haven’t got everything in it that many in the community wanted.

This is not our Bill. It was originally our Bill (Section 92A) and despite the good intentions to make it work, it resulted in a grand stoush between the different parties which required a rethink. Labour pushed for and supported that rethink.

I just quickly want to mention the SOP that’s coming before the House today on Section 122MA. I know this has caused some more consternation in the industry around what appeared to be an attempt to push a guilty by accusation regime through and put the onus on the account holder to prove that they have not infringed when all a rights holder has done has file a notice of infringement.

The way it appeared in the revised Bill did appear to put the onus on the account holder. And the words used that an infringement notice is conclusive evidence, were misleading and wrong. We understood this after the industry approached us and we sought further talks with the government.

They agreed to amend the clause and ensure that once a notice was received and where the Copyright Tribunal process was triggered that all the account holder had to do was to respond and challenge the notice. This would trigger a reversal of the onus onto the rights holder to prove that an infringement had occurred.

What we’ve ended up with is better. It’s not perfect. But it’s better than many other jurisdictions.

Right now in the UK, implementation of the Digital Economy Act, a piece of legislation designed in part to crack down on unlawful file-sharing, is being delayed by a judicial review in the High Court because of a challenge brought by internet service providers.

Internet providers BT and TalkTalk demanded the judicial review, arguing that the legislation was rushed through parliament without proper debate.

They claim that the measures unnecessarily impact users' privacy and force ISPs to police copyright infringement on the net.

The courts will consider whether the act is in line with European legislation, in particular as it relates to users' privacy and the role of ISPs.

If the court finds in their favour, the act would no longer be enforceable.

Thankfully, this Bill before us today was worked through and compromise, albeit it somewhat grudging was reached

Which brings me to a reason I am pleased this Bill is before the House today and why if you had to choose, then the issues that are plaguing people on this Bill are kind of minor in comparison to the bigger picture going on.

I refer Mr Speaker to the Trans Pacific Partnership Agreement “free trade” currently under negotiation between NZ and 8 other countries, including the U.S. It’s an attack on our sovereignty and what it currently contains in relation to intellectual property issues is truly frightening.

Leaked texts of the IP chapter reveal that if it was accepted in its present form and if NZ signed up, then the legislation would be chickenfeed in comparison.This is the next battleground for intellectual property in NZ, we all need to unite around it.

Auckland based IP lawyer Rick Shera has written this about it recently:

The return of s92A guilt on accusation, repeat infringer, termination of internet accounts - 3 strikes… the US wants us to effectively scrap the last 3 years of consultation around the replacement of section 92A and the reasonably balanced (but still not perfect) approach we are working towards in the Copyright (Infringing File Sharing) Amendment Bill ... Imagine you're an ISP who has to bear the cost of gearing up for that regime only to be told later in the year that its Ground Hog Day and we're all going back to the section 92A debacle.

Labour has said that the leaked text on intellectual property, copyright and parallel importing in the Trans Pacific Partnership negotiations requires an emphatic rejection from the New Zealand government.

The secrecy surrounding these provisions is of real concern. The leaked United States provisions are plainly not in New Zealand’s interests.

Mr Speaker, this is a compromise bill. We support it. We have serious reservations about suspension of internet accounts as a penalty. Thankfully they’re not enacted. We are concerned about the costs of this new regime and where they’ll fall and who will pay. We’ll keep a watching brief on the onus of proof issue raised in Section 122MA. But it’s a lot better than it was. And as long as termination remains un-enacted, we’ll support it.