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InternetNZ says copyright law is ‘irrelevant and unused,’ as file sharing crackdown whimpers out

InternetNZ is hoping New Zealand's updated Copyright Act will "last longer than UHT milk", with copyright holders no longer chasing Kiwi pirates using the so-called 'Skynet' law.

MBIE closed consultation on their review of the Copyright Act last month after seeking feedback on how well the law is working, with InternetNZ among those submitting on several aspects, including New Zealand's controversial anti-piracy file-sharing enforcement law.

The Copyright (Infringing File Sharing) Amendment Act - or so-called 'Skynet' law - was passed under urgency in 2011, and allows rights holders to ask internet providers to send graduated warning notices to customers accused of illegal file sharing, before taking them to the Copyright Tribunal after the third notice.

In following years, a handful of cases were brought to the Tribunal - almost all of them by the Recording Industry Association of New Zealand, which is now Recorded Music NZ.

However, MBIE and industry representatives are now saying the law hasn't been used for years, is dysfunctional, and looks to have become almost completely redundant.

In Recorded Music NZ's 2017 response to the review's terms of reference, they elaborated on the many problems they faced while using the regime.

Notice requests sent to ISPs were lost, thrown away or invalidated by technicalities, rewards ordered by the Tribunal were disproportionate to the crime or little more than a slap on the wrist, and decisions took months to be released - in one case up to 329 days, they said.

InternetNZ engagement director Andrew Cushen said his organisation welcomes the review, and that New Zealand's copyright law around file sharing has become completely irrelevant and unused.

"Back in 2011, InternetNZ said that copyright rules on file sharing would quickly go out of date as new business models opened up new ways for New Zealanders to access and pay for creative works online - our prediction came true," Mr Cushen said.

"Uptake of services like NetFlix, Neon, and Spotify shows that New Zealanders are happy to access and pay for creative work online.

"The file-sharing law addressed a temporary problem.

"New Zealand's copyright law should last longer than UHT milk ... instead of writing rules with a built-in expiry date, we need a more flexible approach that allows for innovation."

In the MBIE discussion paper on the review, it was confirmed that Kiwi file-sharing pirates are essentially not being chased anymore.

"The use of pirate websites, which are usually hosted overseas and, therefore, beyond the jurisdiction of New Zealand’s laws, and the development of new technologies for online infringement create new challenges for copyright owners in addressing online infringements," the paper said.

"Traditional enforcement measures are becoming largely ineffective for addressing online infringements.

"Although a number of infringement cases using the infringing file sharing provisions were brought shortly after the regime came into effect in 2012, we understand that the regime is no longer being used by copyright owners.

"Since late 2015, ISPs do not appear to have been requested by copyright owners to send any notices to their account holders - the last claim to be taken to the Copyright Tribunal was also in 2015."

A Ministry of Justice spokesperson said that, while their ministry administers the Copyright Tribunal, they were unable to supply the number of notices sent, and referred 1 NEWs to MBIE, which administers the Copyright Act.

However, a spokesperson for MBIE also said they don't have any record on the number of notices issued.

Spokespeople for four of New Zealand's largest ISPs - Spark, Vodafone, 2degrees and Vocus (Slingshot/Orcon) - either didn't respond to a request to provide the number of notices issued, or declined to provide them.

Independent research commissioned by Vocus, released this year in February, suggested services like Netflix have led to a dramatic reduction in peer-to-peer piracy.

Vocus Consumer General Manager Taryn Hamilton wrote that "the reason people are moving away from piracy is that it’s simply more hassle than it's worth.

"Piracy isn't driven by law-breakers, it's driven by people who can't easily or affordably get the content they want."

In InternetNZ's consultation submission for the review, they suggested rights holders may have also shied away from issuing notices because they could be perceived negatively for doing so, or because it was simply not worth their time.

Mr Cushen said, in short, "the file-sharing framework is not used because it is not relevant.

"Even the distributors who pushed for the law changes in 2011 have moved on."

Submissions to the review are currently being considered by MBIE before cabinet policy decisions are made and a draft bill is released - no timeline has been given.

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Streaming services like Netflix have slowly led to a decrease in peer-to-peer file sharing. Source: 1 NEWS composite