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September 2011

Jesper at Waffle linked a thorough exposé of U.S.-driven dismantlement of Swedish civil liberties (worth reading) which prompted me to look into the U.S. influence on our own recently amended Copyright Bill, and the reintroduced (and renamed) Section 92a.

Distressingly, our new law implements the one point Sweden wouldn't concede: the implementation of a 3-strikes scheme, with explicit presumption of guilt. Below is a series of extracts from cables between Wellington's U.S. Embassy and the U.S. State Department, which prove quite revealing as to the origins of this law.

In March 2009 the then-Section 92a was removed from the new copyright law shortly before it was to come into effect. A U.S.-guided rewrite was already underway:

The New Zealand Government has proactively cooperated with and values the opportunity to work constructively with the United States in a number of international IPR [Intellectual Property Rights] fora.

The removal of Section 92a was seen by the U.S. as giving ‘IP rights holders’ (i.e. large media companies):

…additional time to negotiate … a mutually agreeable code of practice for terminating the internet access of users accused of infringing copyrights.

Note the wording there: ‘a code of practice for terminating the internet access of users accused of infringing copyrights.’ According to the new law (emphasis mine):

an infringement notice is conclusive evidence of the following:
  (a) that each incidence of file sharing identified in the notice constituted an infringement of the right owner's copyright in the work identified:
  (b) that the information recorded in the infringement notice is correct:
  (c) that the infringement notice was issued in accordance with this Act.

That's right. Guilt upon accusation, in law. How did that happen? In May 2009

Minister of Commerce Simon Power met with representatives of the NZ copyright industry and GNZ officials to discuss a three-step plan to re-draft and enact section 92A of the Copyright (New Technologies) Act by end of 2009.

Minister Power has made it clear to MED officials and to industry reps that the GNZ has no intention of going back on its commitment to strengthen NZ's copyright regime. He expressed privately that he wants to avoid some of the hysterical public reaction that accompanied the last attempt to revise S92A. His plan looks to be well thought out and with the input from a panel of top IPR experts the new provision will avoid the earlier criticism of poor draftsmanship. The Embassy in the meantime has repeated its offer of assistance to GNZ officials to offer consultations with USG copyright experts through a DVC.

Note ‘hysterical public reaction.’ Note also ‘input from … top IPR experts’ and ‘…offer consultations with USG copyright experts.’ Consider that we now have a system, in law, where you can be accused of a crime, fined up to $15,000, and in future be disconnected from the internet, with no recourse because the accusation itself is considered conclusive. ‘Hysterical public reaction’ indeed.

Please also note that Minister of Commerce Simon Power is also Minister of Justice, and Minister Responsible for the Law Commission.

Please don't vote him back in.

Tim Bulkeley commented:

That should surely read "Minister for Injustice"?

Jesper commented:

Nope. It's kind of like a Ministry of Truth, you see.