New Zealand internet service providers (ISP) are not entirely thrilled with new amendments to the country's copyright legislation, holding them responsible for illegal downloads.
As a result Chapman Tripp's Justin Graham has received a high level of interest from such clients, since consultation began on amendments to the Copyright Act in 2006. Moving forward he sees a steady flow of work to come from section 92A, - the most controversial part of the legislation, allowing the termination of internet accounts that fail to comply - which will become effective on the 28th of February 2009. "The response from ISP providers has been one of shock and horror, but the main fear has been additional compliance costs and whether they will be required to bear those costs. It's fair to say my workflow has doubled because of this," he said.
As part of the changes, any ISP can adopt their own user code of conduct and use a "graduating" response to notify users of illegal internet activity, before their internet access is terminated. However, this has brought harsh criticism from the legal community, with some lawyers calling it "draconian" legislation since individual misconduct can leave entire businesses or government bodies exposed to internet termination.
To this end Graham believes the section fails to differentiate individual and multi-user internet accounts, despite significant consultation on statute aspects. He suspects that gaps in the legislation were partly caused by an attempt to make it a "middle-ground" law.
Most Kiwi ISPs are "unhappy" with the amendments and Graham believes they are likely to push for some changes to the law, but still comply since it is still relatively "ISP-friendly". So far the firm has received account termination policy work, and assisted clients with providing feedback to the New Zealand government on the legislation's notice and termination procedures.
According to Graham there will be an intermediate period of six months, where test cases may transpire that are similar to the iiNet dispute in Australia. "I couldn't rule out a similar proceeding such as the iiNet coming through, but there may be some challenge to ISPs that are perceived to not adopt an account policy," he said.