Copyright (Infringing File Sharing) Amendment Bill: A Challenge to Democratic Norms

This article by guest writer Lindsay Breach will appear in the June issue of The Spark
The Trans-Pacific Partnership Agreement (TPPA) is a trade agreement between New Zealand, eight other nations, and the United States. Of particular concern to this article, is that the agreement promises to introduce a strongly U.S. influenced intellectual property regime to New Zealand. Already, this influence has been felt in the shaping of copyright legislation as evidenced by leaked cables indicating the industry is willing to pay $533,000 to fix “key gaps in intellectual property rights enforcement”. The lesson: it appears our legislation can be bought.
Wednesday, April the 13^th was a black day for democracy in New Zealand. The Copyright (Infringing File Sharing) Amendment Bill was rushed through under urgency, which had been previously reserved for Canterbury earthquake related legislation. This Bill had been postponed due to previous public outcry and was highly contentious law. It seemed particularly insulting to Christchurch residents, the victims of the February 22^nd Earthquake, because their suffering and the nation’s state of emergency had seemingly been trivialised.
The Bill introduces a ‘guilt upon accusation’ infringement notice three-strike scheme. This scheme dresses up a civil action, between two parties, as a criminal offense. The copyright holder can request an Internet Service Provider to send an infringement notice, with or without good cause for suspicion, to an account holder. After three strikes, the account holder can be taken to the Copyright tribunal. The burden is on the account holder to prove their innocence against the allegation.
The scheme places the account holder at a disadvantage. At a Tribunal hearing, both parties are denied legal representation. This does not put the parties on an equal footing. The copyright holder is likely to be a corporate entity that has access to a legal team, experienced representatives and wealth. Therefore, it appears unlikely that an account holder will be able to prove their innocence, which raises the question of whether there will be a fair hearing. Faced with such overwhelming odds, the wise account holder, whether guilty or not, would seemingly be better off to settle than face the steep penalties imposed under the Bill.
The Bill has not gone unopposed by the public. In 2008, the Internet Blackout Protests forestalled its passing and demonstrated that hearing the Bill under normal democratic processes would be met with protests. This time, the Bill has already been passed despite National Business Review polls indicating that 89% of the people are opposing it. The opposition to the Bill is evident in the three day exponential growth of the ‘Opposing The Copyright (Infringing File Sharing) Amendment Bill’ Facebook group, which has currently reached a membership of 13,518 members. Its membership ‘blacked out’ their profiles to express opposition.
The social network website also allowed for the organisation of the May 1^st protests, which were held in Auckland, Wellington, Christchurch and Dunedin to oppose the implementation of the Bill. The Christchurch demonstration was particularly forceful as participants expressed disdain for the Bill passed under urgency despite the fact it added nothing to fixing their devastated city. A second round of protests is currently being planned for August 27^th, which will occur several days before the new law will come into effect. Those interested in that round are able to find further details on the ‘Opposing The Copyright (Infringing File Sharing) Amendment Bill’ information page available at http://www.facebook.com/#!/NZBlackout.