Ardern Jacinda: Copyright (Infringing File Sharing) Amendment Bill — Second Reading In Committee Third Reading 
Ardern Jacinda: Copyright (Infringing File Sharing) Amendment Bill — Second Reading In Committee Third Reading 
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JACINDA ARDERN (Labour) 
: 
 It is my pleasure to stand and add to the very sound comments that have been made by my colleague Clare Curran who I want to acknowledge through this process has made a really significant contribution to this debate. I think we all have to acknowledge and I would like to see it acknowledged by Government colleagues that the original version of the Copyright (Infringing File Sharing) Amendment Bill was drafted by the previous Labour Government and it was supported by the National Opposition. We have acknowledged on this side of the House that we did not get this legislation right in its original form. We stand up and we own that but we have not seen that kind of ownership on the other side of the House. I have some comments for the Green Party on its position but I will leave those for later on in the discussion. 
I think we should all be up front here. There is one word to describe this legislation through all its iterations and that word is “fraught”. This has been a delicate balancing act between two very important fundamental rights particularly from the perspective of Labour members of Parliament. On the one hand there is the issue of how to deal with the rapidly changing world and we on this side of the House absolutely value the importance of having the freedom to access information and to access our creative industries via the Internet. That was very very important to us from a social and a democratic perspective and it was something that we wanted to protect. But secondly we wanted to protect the right of creatives in particular to protect their intellectual property. That is a fundamental issue for us if we are to have those people who work in the creative sector continue to make a living out of what they do. I have a few other comments to make on that further down the track. 
At this point I want to declare an interest. As Labour’s associate spokesperson on arts culture and heritage I have a direct interest in making sure that we protect our creative sector and everything that it contributes to New Zealand from a cultural perspective. That includes music films the screen industry and all iterations of our creative sector. So at the top of my mind when looking at this issue has always been how to balance the sector’s needs with our overriding need to ensure fair and equitable access and access to justice in considering whether someone has infringed upon someone else’s rights. But let us be clear on this: not all creatives have sat in the same boat on this issue. I have had many come to me and say they acknowledge up front that the future of their industry has changed and they are embracing that change and they want people to be able to freely access their work. But at the same time we had the flipside where other creatives acknowledge that there was still an element of industry for them to be able to access. 
Folk on the other side of the House are holding up signs at me and my eyesight is clearly going because I cannot read them. Perhaps Katrina Shanks will flash the sign again so that I can see it. It says: “Have you ever file shared?”. I am happy to answer that question directly for the member. To the best of my knowledge I have not. What I will say and this is where I will sound like a Pollyanna is that I have always had a problem with the downloading of New Zealand music in particular because I know New Zealand musicians. I know that they struggle to survive in the industry in New Zealand and the last thing I want to be doing is stealing from them. That is how I always perceive them. 
Clare Curran 
: Support and fund them. 
JACINDA ARDERN 
: That point is well made by my colleague. We have a dual role here not only in protecting their interests but also in supporting and fostering their industry. That is another debate and if Chris Finlayson was open to having that discussion I would like to discuss for instance his current bent on funding the classical arts rather than some of our more modern arts but that is for another day. 
I want to quickly run over the on-notice process and how it will work because there are a couple of elements in there that I want to clarify. We have already talked about the fact that copyright owners who can provide evidence of infringements will be able to request Internet providers to tell their customers to stop printing material. It is implicit that it will be the likes of the Australasian Performing Rights Association and the Recording Industry Association of New Zealand that will be taking this action. It is unlikely to be individual copyright-holders just because of the very nature of the costs that may be involved in this. That is something that this House must monitor. We must monitor the access that people have to this process. The first notice will inform the account holder that the infringing activity has occurred and that it is illegal. A second and third notice may be sent if an account holder ignores notices and continues infringing. If the account holder continues to infringe then the copyright owner may seek a compensation award of up to $15000 at the Copyright Tribunal. I raise the point that someone on Twitter with me this evening called this bill the “Guilty Until Proven Innocent Bill” and I could see why they may give a label like that to this bill. That descriptor does not impart the account holder’s right of rebuttal against an accusation. I understand that new section 122MA is clarified by the Minister of Commerce on Supplementary Order Paper 230. I hope that we will go over that in greater detail in the Committee stage to clarify that there is a right of redress for an account holder. 
The bill as introduced provides that copyright owners can seek the suspension of an Internet account only through the courts and that suspension can be for up to 6 months. This provision remains in the bill but will apply only until the Minister brings it into force by an Order in Council. That is an important point. The Greens and Labour do not like this provision. We do not fundamentally believe that a right to suspend someone’s Internet account should be contained in this legislation. But I make this point to the Greens: they know full well that had Labour withdrawn and said that we would not support the bill in its entirety we would have the original provision sitting in this legislation now and the right to suspend an Internet account holder’s account would have existed from the moment the bill is enacted. This was a compromise. Although we stand against the provision the bill could have been a lot worse had Labour not sat down with the Government and negotiated a much more palatable arrangement. We could have taken the high and mighty stance and stood back and said that we disagreed and as a result we would have come back with something that I think a lot of people would have seen as being as unpalatable as section 92A potentially. So we did compromise and we are standing up and acknowledging that but at the end of the day we think that as a result of that negotiation we have a better outcome for both sides of the argument on what I continue to believe is a very very fraught issue. So that is a point of clarification that I wanted to make. 
I have some final parting thoughts. I notice from some of the statements made at the Commerce Committee that a lot of weight has been placed on the idea that infringement notices will rectify this situation. I want to acknowledge that we cannot be too naive in the implementation of this bill. So my first point is this: just because it is law does not make it so. Just because we have in this House written this piece of legislation does not mean that from day one tomorrow people will stop file sharing. We will have to enact this bill and act on the provisions in this bill if we are to protect the rights of copyright-holders. So education will be important. 
Secondly and very importantly for the sake of our creative industries we as policy makers and as a Government and Opposition have a responsibility to work alongside the creative industries as they navigate this changing world. There are two things I would recommend to the Government in this regard. First if we are to support our creatives in order to find a way to continue to make a living and survive in their area of work we should not cancel the Pathways to Arts and Cultural Employment programme which I know the Government is considering via Work and Income. Retaining that scheme is one way that we can work alongside our creative industries to figure out how to manage this changing world and how to make money out of creative industries which ultimately benefit all of us our communities and our cultural sector. Secondly the Government should open the doors to the Trans-Pacific Partnership agreement. That is the biggest threat facing our intellectual property holders our creatives at this present time. If the Government opens the doors it will show all of us that we have nothing to fear but currently I think the fact that the doors are closed means that we absolutely do.