The Internet Service Providers’ Association (ISPA) said that they do not support any system where they have to act as copyright police and where copyright infringers lose their Internet access.
The minister of trade and industry, Rob Davies, recently released the “Copyright Review Commission” report, calling for Internet Service Providers (ISPs) to suspend Internet access to repeat copyright infringement offenders.
One of the recommendations in the report suggests that “The ECT Act should be amended to require ISPs to adopt a graduated response for repeat infringers, culminating in the suspension of access services to an individual”.
This recommendation may seem fair prima facie, but scratching a bit deeper reveals a minefield of legal problems and cost issues associated with ISPs being required to protect copyright holders’ interests.
Cost of sending our warnings
A recent report about a similar system in New Zealand showed that the costs associated with sending out copyright infringement warnings meant that very few notices were actually sent out.
“Put off by the $25 NZD (roughly $20 USD) price they have to pay ISPs per notice sent, it was revealed that the movie industry sent out a grand total of zero warnings,” a TorrentFreak report said.
“The Recording Industry Association of New Zealand sent out 2,766 notices between October 2011 and April 2012. The music group asked for warning notice cost price to be cut to around $2 each.”
However, ISP argued that the low volumes meant that they are losing money, and asked for warning notices to increase to NZ $104 (approx $83) just to cover costs.
Both parties were told by the New Zealand cabinet that “no change will be made to the NZ $25 notice fee”.
ISPA’s regulatory advisor, Dominic Cull said that they do not support any system where ISPs monitor copyright infringement.
“This is not the proper role of an internet access provider nor would it be legal for ISPs to do so given the provisions of the Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA),” said Cull.
ISPA also do not support the plan where ISPs warn users about copyright infringement and discontinue services to repeat offenders.
“It is an extreme solution to require an ISP to terminate a customer relationship based on the untested allegations raised by a third party copyright holder. It may also be argued that a graduated response mechanism infringes the constitutional rights to freedom of expression and privacy of Internet users,” said Cull.
Cull said that if such a system is implemented, the costs should be covered by those who are trying to enforce their rights.
“The New Zealand experience indicates that the substantial if not astronomical figures provided with regard to the loss suffered by copyright holders do not appear to be such that copyright holders are prepared to pay for the implementation of a graduated response mechanism,” Cull argued.
Cull explained that whilst ISPA recognises the importance of intellectual property (and it is considered best industry practise for ISPs to maintain acceptable use policies which reflect this) it would be imprudent for ISP’s to take on a policing and enforcement role in this regard.
“ISPA members take the necessary steps to ensure compliance with legislation and regulations. The relevant legislation is the Electronic Communication and Transactions Act, which specifically grants “safe harbour” provisions to ISP’s, and immunizes them from liability for customer content on their networks,” explained Cull.
“Underlying this is the principle that ISP’s are merely conduits of data and as such cannot be held liable for the policing and monitoring of customer content. There is nothing unique to copyright infringement which should warrant a violation of the above principle.”
“In any event it should be noted that it is not clear to what extent ISP’s would be able technically to enforce copyright protection on its networks. In particular file-sharing is often legitimate and any policy on anti-piracy would have to negotiate a very tricky path in balancing users’ rights with those of the content-owners,” said Cull.
“This balance has not been achieved globally and it is hoped this will be considered carefully should the authorities chose to legislate in this regard.”