Section 92A - what does it mean for you?

We have been receiving a lot of questions from our customers about the new Copyright (New Technologies) Amendment Act, in particular the now infamous section 92A, which has some major implications for both New Zealand Internet users and copyright holders. We want to make sure you are up to speed with what this means for you, as well as making sure that you are aware that you have a chance to submit feedback on the way that this is going to be implemented.

What is this section 92A business anyway?

The Copyright (New Technologies) Amendment Act was passed in order to better protect copyright holders in our hyper connected world. Essentially it is intended to ensure that rights holders are able to effectively stop the infringement of their copyright.

Section 92A stipulates that they are able to do this by notifying Internet Service Providers like us when they believe their rights are being infringed. We are then expected to pass this notice on to users. If those users continue to infringe copyright then we are obliged under the Act to terminate their connection.

While it is fair to say we are not exactly over the moon about this process, we do recognise that it is important to uphold rights holders rights. We have been hard at work with the rest of the industry as part of the Telecommunications Carriers Forum (TCF) working party. They have just released a draft Code of Practice, and are inviting submissions.

What is the gist of it?

The draft Code of Practice sets out the following basic process:

1. If a Copyright holder identifies an infringement of their Copyright by an Orcon customer they notify us in writing.
2. We ensure that the notification meets the requirements set out in the code, and provided it does, we then send the customer identified an 'education notice'. At this point the customer is able to challenge the notice by completing a counter-notice that they send to us, and provided it meets the requirements, we then forward on to the rights holder.
3. At the end of the month all those customers that have received education notices during that month will be sent a Copyright infringement warning notice. This is the official notice (and counts as a 'strike').
4. If we continue to receive notification of Copyright infringement from rights holders about a specific user, that user will receive a total of 3 warning notices (always at the end of a month). Your 3rd notice is a final warning.
5. Should we receive a notice after you have already received 3 warnings we will send you a termination notice. This notifies you that your connection will be terminated in 48 hours.

Other important notes

Downstream ISPs

This Code introduces the concept of 'downstream ISP's'. Under the Code a downstream ISP is any organisation that provides Internet to others. Obvious examples are businesses such as Internet cafes. However the concept also applies much wider than that. If you are a business that provides Internet to your employees then you are deemed to be a downstream ISP. Libraries and Schools are also counted as downstream ISPs - anyone that provides Internet service to others. This means that if we receive a notice about someone infringing copyright from your connection we will forward this notice to you, and you will be responsible for warning (and potentially terminating access) for those responsible for infringement in a manner that complies with the Act.

Thus it is extremely important that you have read and understood implications of the Copyright (New Technologies) Amendment Act, which requires you to reasonably implement the provisions of the act (i.e. terminating the connections of those who are breaching copyright). You are free to choose how you do this, provided that it ensures that you comply with the Act.

We are not the police

One thing we want to point out is that we do not take responsibility for investigating whether or not a copyright infringement has or has not occurred. Essentially we act as a go between between the rights holders (or their representatives) and users.

Rights holder approval process

Under this code of practice the intention will be that rights holders will need to be pre-approved (by the TCF) in order to lodge infringement notices. This pre-approval process is intended to ensure that rights-holders are complying with a reasonable standard of evidence, and not just making unwarranted or vexatious accusations.

Fees

There will be a fee for rights holders lodging infringement notices to offset the work that we will have to undertake in order to process the alleged infringement.  There will be no additional fees or charges for customers.

We will be updating you again once the Code of Practice is finalised. Until then we encourage anyone who is interested to read more about it on the TCF website.