Curran Clare: Copyright (Infringing File Sharing) Amendment Bill — Second Reading In Committee Third Reading 
Curran Clare: Copyright (Infringing File Sharing) Amendment Bill — Second Reading In Committee Third Reading 
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CLARE CURRAN (Labour—Dunedin South) 
: 
 I have mixed feelings about the Copyright (Infringing File Sharing) Amendment Bill coming before the House today. The House is in urgency and given that the bill has been sitting on the Order Paper for months nothing about today or tomorrow requires the bill to be passed quickly. The Government uses urgency excessively. Before I get into the substance of the bill I will quickly mention some recent statistics about urgency that were compiled by my colleague Grant Robertson. In just over 2 years of the National Government 17 bills have been passed without referral to a select committee compared with five or fewer in the full 3 years of the three previous parliaments. There are reasons to justify urgency from time to time but not to that extent. 
One thing about the Copyright (Infringing File Sharing) Amendment Bill is sure: it did go to a select committee. There was robust debate in the Commerce Committee and throughout the community and there has been much to-ing and fro-ing on the bill. The outcome is not perfect but with the support of both sides of the House the legislation is better than what was passed in 2008. Labour supports the bill but we still have reservations and I will be speaking about them. 
I also want to say that in some ways I am pleased the legislation has come back before the House. It was the first portfolio issue of communications and information technology that I took on board and I realised pretty quickly that the rising discontent and dismay among the community about new and emerging technologies and the creation and distribution of digital content had to be addressed and that we parliamentarians were mostly out of touch. 
If I thought I would get a straight answer—although I think there was nearly one from over on the other side of the House earlier—I would ask all members right now to put up their hands if they have or if they know someone who has illegally downloaded material. I would like to think that many of us as a result of the discussions that have gone on around the bill and in the wider context are now a bit more in touch with reality on what people are doing on the Internet. 
The bill has created a lot of interest. There were 237 submissions including 31 supplementary submissions. In the coming years the Internet will become increasingly essential in all of our lives. Disconnection of accounts is a disproportionate remedy for file sharing. We needed a law but we did not need a bad law. The bill represents better law. I know that it will not please everyone—in fact there are parts of the bill that some submitters still oppose—but there are times when it is important to negotiate in order to get an outcome that is less bad than taking a high moral stand and ending up with something we fundamentally cannot live with. Negotiation is not a one-way street and I am pleased to say that my experiences in negotiating with the Minister of Commerce Simon Power on the bill and in the Commerce Committee have been constructive. 
Labour is prepared to support the bill through its remaining stages due only to a compromise that we reached with National that no New Zealander will have his or her Internet connection suspended as a result of the bill. Labour’s preferred option was to completely omit account suspension provisions from the bill but National’s position was intractable. Account suspension provisions remain in the bill and could theoretically be used in the future but any Minister who implements termination will have to wear the consequences. 
Rather than oppose the bill outright we are prepared to compromise to ensure that New Zealanders are not denied access to the Internet which is something that so many people rely heavily on today. If the suspension penalty is used the Minister of Commerce will have to enact the clause by Order in Council putting the onus on the creative industries to prove that there is a case to terminate access and that the notice system is not working. Let us be very clear: if it were not for this compromise then the bill before us today would state that New Zealanders’ Internet accounts could be cut off for 6 months. Labour would have opposed the bill and it would have been bad law. 
Although the high moral ground might be a great place it is not much good when we are left standing on our own and the world moves on around us. Labour wanted to have an impact on the bill—and we have—but we have not got everything we wanted and we have not got everything that many in the community wanted. This bill is not Labour’s bill. Section 92A was from our bill and despite the good intentions to make it work it resulted in a grand stoush between the different parties that led to a rethink. Labour pushed for and supported that rethink. 
I will quickly mention the Supplementary Order Paper that is coming before the House today on proposed new section 122MA. I know that the proposed new section has caused some more consternation in the industry in relation to what appeared to be an attempt to push through a guilty by accusation regime and to put the onus on the account holder to prove that he or she has not infringed when all the rights-holder has done is file a notice of infringement. What appears in the bill appears to put the onus on the account holder and the words used—“an infringement notice is conclusive evidence”—are misleading and wrong. We understood they were wrong after the industry approached us and we sought further talks with the Government. The Government agreed to amend the clause and to ensure that once a notice is received and the Copyright Tribunal process triggered all the account holder has to do is respond and challenge the notice. That will trigger a reversal of the onus and put it on to the rights-holder to prove that an infringement has occurred. 
What we have ended up with is better. The bill is not perfect but it is better than the process in many other jurisdictions. Right now in the UK implementation of its Digital Economy Act legislation that is designed to crack down on unlawful file-sharing is being delayed by a judicial review in the High Court because of a challenge brought by Internet service providers. Internet providers BT and TalkTalk demanded the judicial review arguing that the legislation was rushed through Parliament without proper debate. They claimed that the measures unnecessarily impact on users’ privacy and force Internet service providers to police copyright infringement on the Net. The courts will consider whether the Act is in line with the European legislation—in particular as it relates to users’ privacy and the role of Internet service providers. If the court finds in favour of the Internet service providers then the Act will no longer be enforceable. 
Thankfully the bill before us today was worked through and compromise was reached albeit somewhat grudgingly. That brings me to a reason why I am pleased the bill is before the House today and why if we had to choose the issues in the bill that are plaguing people are kind of minor in comparison with the bigger picture. I refer to the Trans-Pacific Partnership agreement which is a free-trade agreement of sorts that is currently under negotiation between New Zealand and eight other countries including the US. The agreement is an attack on our sovereignty and what it currently contains in relation to intellectual property issues is truly frightening. Leaked texts of the Internet Protocol chapter reveal that if the agreement is accepted in its present form and if New Zealand signs up then the bill will be chicken feed in comparison. The Trans-Pacific Partnership agreement is the next battleground for intellectual property in New Zealand and we all need to unite around it. 
Auckland-based Internet protocol lawyer Rick Shera has written about this issue recently. He said: “The return of s92A guilt on accusation repeat infringer termination of internet accounts—3 strikes … the US wants us to effectively scrap the last 3 years of consultation around the replacement of section 92A and the reasonably balanced (but still not perfect) approach we are working towards in the Copyright (Infringing File Sharing) Amendment Bill … Imagine you’re an ISP who has to bear the cost of gearing up for that regime only to be told later in the year that its Ground Hog Day and we’re all going back to the section 92A debacle.” 
Labour has said that the leaked text on intellectual property copyright and parallel importing in the Trans-Pacific Partnership negotiations requires an emphatic rejection from the New Zealand Government. The secrecy surrounding these provisions is of real concern. The leaked United States provisions are plainly not in New Zealand’s interests. 
The Copyright (Infringing File Sharing) Amendment Bill is a compromise. We support it but we have serious reservations about suspension of Internet accounts as a penalty. Thankfully termination will not be enacted. We are concerned about the costs of this new regime about where the costs will fall and about who will pay. We will keep a watching brief on the onus of proof issue raised in proposed new section 122MA and on whether mobile technology is affected and will be included in the legislation in a few years’ time. The bill is a lot better than it was. As long as termination of accounts remains unenacted we will support the bill.