Internet file sharing issues identified
Privacy, "speed-camera justice", and a complex Act which attempts to deter lawyer participation are some of the issues raised by the Law Society in regards to the proposed regulations for the Copyright (Infringing File Sharing) Amendment Act.
The Law Society has released its submission to the Ministry of Economic Development on the ministry’s discussion document. This was prepared with assistance from the Society's Intellectual Property Law Committee.
The Law Society is concerned that the act "explicitly discourages" the involvement of lawyers in Copyright Tribunal proceedings but is legislatively too complex to be accessible to "ordinary members of the internet community".
While recognising the Act's aim of finding a less expensive means of resolving copyright infringement disputes, the Society recommends that infringement notices and challenge forms should be drafted to enable account holders to understand the allegations made against them and to respond accordingly.
The Law Society recommends that rights holders be required to identify the type of work infringed, state its title and the restricted action allegedly committed to the Internet Service Provider (IPAP). The IPAP then communicates the allegations to their internet account holder.
Concerns about privacy have also been raised. Under the proposed legislation the IPAP does not disclose the account holder's identity to the rights owner, but the rights owner's identity would be provided to the account holder.
The Society recommends the account holder is not given the complaining rights owner’s details for two reasons. First, it would decrease the chance of the account holder contacting the rights owner and giving them information on their identity. This could jeopardise the account holder’s case. Secondly, the Act sets up the IPAP to work as the middleman between the rights owner and the account holder.
In terms of damages for copyright breaches, the Society says the Act's requirement for the Tribunal to impose virtually set amounts is "wrong in principle". A predetermination in Option 2 of the Act precludes the Tribunal from exercising its judgement in light of the particular facts of the case before it.
Acknowledging flexibility is unusual in a civil setting, the Law Society says, and without it the procedure could be tantamount to "speed camera" justice.