ISPs’ dilemma: the curse of section 92A

In today’s information society, the issue of copyright infringement often rears its ugly head, and, in New Zealand, the phrase on everyone’s lips is “section 92A”.

There has been a lot of publicity around section 92A and significant developments in recent months, so whether you’re concerned or just curious, here’s a summary of what it’s about.What is section 92A?Section 92A is a provision of the Copyright Act 1994, due to come into force on 27 March 2009, which will require internet service providers to have policy for terminating accounts of repeat infringers of copyright. You can view it at http://tinyurl.com/ac3pc6. There are many subjects of controversy surrounding section 92A, but we will focus on our top three:

• Balance of rights: Copyright infringement has traditionally been an issue between a copyrights holder and the infringer. Section 92A states: “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.” It places the ISP between these parties – requiring the ISP to be judge, jury and executioner – with the ISP being potentially liable to its customers and to rights holders in relation to decisions that it makes.

• Vagueness: What do the words “reasonably implement” mean? What are “appropriate circumstances”? The legislation leaves us with little guidance. Where an ISP and a disgruntled rights holder do not see eye-to-eye on the matter, will the courts be required to determine what these words mean? We certainly hope not.

• Definition of ISP: The amendment says: “Internet service provider means a person who does either or both of the following things: (a) offers the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing; (b) hosts material on websites or other electronic retrieval systems that can be accessed by a user.” This definition of an ISP is incredibly wide, encompassing practically anyone who provides a shared internet connection or website. This may include businesses, schools, libraries, or government departments. The definition of ISP has an impact on the scope of, and compliance costs relating to, section 92A.

Who will come to save the day?The Telecommunications Carriers Forum (TCF) has established a working party to develop a self-regulated code of practice for managing issues raised by section 92A, for adoption by TCF members and ISPs in New Zealand.The Draft TCF Internet Service Provider Copyright Code of Practice was released for public consultation on 4 February 2009. Submissions were due by 6 March 2009. However, even if the TCF code is finally agreed, this may not be the end of the matter. It is but one example of the type of “policy for terminating accounts of repeat infringers” described under section 92A; it does not amend or supplant the legislation.Recent developmentsOn 23 February, five days before section 92A was originally due to come into force, Prime Minister John Key announced that it would be deferred for one month.It is intended that this time be used by the industry and the TCF to agree a workable code of practice in relation to the section. The Prime Minister indicated that, if no agreement is reached, then section 92A would be suspended. However, if a code of practice is agreed, there would be a review after six months to see if the law is working as it was intended.On 11 March, TelstraClear (a TCF member) announced its withdrawal of support for the TCF industry-wide code. Without unanimous support from its members, the TCF cannot formally ratify a code of practice, which throws the likelihood of reaching an “agreement” into even further doubt.Businesses bewareBy the time you are reading this article, unless it is further suspended or indeed repealed, section 92A will have come into force. It will affect all “internet service providers” (as defined) which, if you are a business, is likely to include you. To ensure that you don’t get caught out, we recommend that you consult with your lawyers now!Corin Maberly is a partner, and Ken Ginn is a senior solicitor, at MGF Webb, a firm specialising in technology and communications law. Phone   +64 9 970 4100 Email   corin.maberly@mgfwebb.com ken.ginn@mgfwebb.com Web   www.mgfwebb.com