Section 92A: Are We There Yet?

I don’t generally blog on copyright and the internet, even though I’m an IP lawyer. Admittedly digital copyright isn't my specialty, but I know a bit about the area.

The reason I don’t generally comment on such matters are twofold:

1. Self preservation. The debate on section 92A of the Copyright Act became so heated that anyone who dared to express a contrary view to the rest of the internet community was likely to be torn to shreds.
2. Professional sensibilities. I have clients on different sides of the debate. As a lawyer I’m an advocate for my clients. So it’s sometimes unwise to express a strong public view on IP matters if that view could be at odds with the interests of a particular client.

However, I do feel the need to comment on the section 92A review.

Background

Unless you have been living in Antarctica for the last six months, or are new to the internet blogging thing, you’ll know there has been hot debate over section 92A of the Copyright Act 1994.

That section was inserted into the principal Act by section 53 of the Copyright (New Technologies) Amendment Act 2008.

Section 92A says:

92A Internet service provider must have policy for terminating accounts of repeat infringers

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

Section 92A was originally due to take effect as at the end of March, but its implementation has been indefinitely delayed after an effective “blackout” campaign by bloggers.

The Government has now recognised there needs to be more consultation on this issue, and has now issued a policy proposal document and invited public submissions.

So what was the problem?

The debate over section 92A centred around a number of concerns expressed by the internet community:

• What is an “internet service provider”
• What does “repeat infringer” actually mean?
• The potential for ISPs to terminate accounts without appropriate safeguards to protect account holders from unjustified termination.

Unfortunately the debate became somewhat excited, with more heat than light generated. The main positions can be summarised as follows:

Internet Community: Oh my god! We’re doomed! We’ll all lose our internet. Police state! This is the end of days.

Copyright owners: Come now, we wouldn’t do such a thing. We’re really lovely people. You can trust us. Just don’t cross us.

ISPs: Oh great! Now we’ve got to come up with a policy that nobody will be happy with. Couldn’t you have just left us out of this?

So what’s new?

It’s possible, just possible, that common sense has taken over. I never subscribed to the view expressed by other bloggers that section 92A heralded the end of western civilisation. But there were clearly areas that needed to be worked on.

The policy proposal document sets out a three-stage process:

1. Issue Cease and Desist Notice

Where a rights holder considers on reasonable grounds that there has been online copyright infringement of one or more of its works, it may invoke the section 92A procedure by sending a first infringement notice to an ISP. The notice must be in a particular form.

That notice must be forwarded by the ISP to the subscriber.

If there is further copyright infringement by that subscriber, a rights holder may send, via the ISP, a cease and desist notice. This must occur within 9 months after the initial notice.

The subscriber will have an opportunity to reply within 30 days to either notice by way of a response notice directly to the rights holder. The rights holder can either accept or reject it, and must inform the subscriber accordingly.

2. Obtain Copyright Tribunal Order For Subscriber Details

Where a rights holder considers on reasonable grounds that there has been further infringement by a particular subscriber after a cease and desist notice has been sent, and the subscriber concerned has been provided with an opportunity to respond by way of a response notice, a rights holder may apply to the Copyright Tribunal to obtain an order requiring the ISP to provide the name and contact details of the alleged copyright infringer (the subscriber).

It is intended that this process be undertaken online. The information obtained may only be used to take action against the alleged infringer.

3. Remedy via Copyright Tribunal

The rights holder may then register an infringement complaint with the Copyright Tribunal.

The subscriber will have an opportunity to respond to the allegation and to elect to proceed to mediation. The Copyright Tribunal will be convened unless agreed otherwise. There will be a set filing fee, though if mediation is elected the mediation costs are shared.

The Copyright Tribunal may order a number of remedies in favour of the rights holder, including awarding damages, issuing injunctions, an order for an account of profits, ordering the subscriber to pay a fine, and ordering an ISP to terminate the subscriber’s internet account.

Is this an improvement?

One of the advantages of the proposed new procedure is that it will ensure arbitrary action is not taken against internet account holders. The threat of arbitrary action was the biggest gripe the internet community had with section 92A. Now no action can be taken without either a Copyright Tribunal order or the consent of the account holder.

There are still many questions remaining. One issue with section 92A is that the definition of "Internet service provider" under the Copyright Act is unclear. The definition may cover not just traditional ISPs, but other networks such as workplaces. The proposed new policy does not appear to address that matter, leaving uncertainty about just who the policy applies to.

It is also questionable from a rights holder's point of view whether the procedure will be of any practical use. There will need to be much detail ironed out during submissions if this process is to be workable. If the process is not simple to use rights-holders may simply go old-school and seek court orders against infringers.

However, the proposals are certainly more balanced, and must be a positive step as far as the internet community is concerned. It may be that some of the details can be thrashed out during submissions. Let's hope so.