UPDATE ON NZ COPYRIGHT LAW SECTION 92A -

UNCLAS SECTION 01 OF 02 WELLINGTON 000115 SENSITIVE SIPDIS STATE PASS TO USPTO, U.S COPYRIGHT OFFICE, USTR JARED RAGLAND, COMMERCE FOR ITA/MAC/OIPR, JGOLDBERG, STATE FOR EAP/ANP, EEB/TPP/IPE E.O. 12958: N/A TAGS: ECON ETRD KIPR NZ SUBJECT: UPDATE ON NZ COPYRIGHT LAW SECTION 92A - INTERNET SERVICE PROVIDER RESPONSIBILITIES. Ref: WELLINGTON 88 WELLINGTON 00000115 001.2 OF 002 ¶1. (SBU) Summary: On May 12, New Zealand's 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. This particular section of the copyright law deals with provisions to terminate repeat copyright infringers who use the internet to illegally download copyrighted material. The GNZ plan looks to be well thought out and with the assistance of a panel comprised of five of NZ's leading intellectual property experts, the re- drafted provision looks positioned to avoid the earlier pitfalls and criticism of poor draftsmanship. End Summary. Background -------------- ¶2. (SBU) New Zealand's Minister of Commerce Simon Power suspended section 92A (S92A) of the new copyright law from going into force as originally planned on March 23. He took this action because negotiators from both the intellectual property rights (IPR) industry and the Telecommunications Carrier Forum (TCF) reached an impasse and were unable to conclude a final code of conduct by the March 23 deadline. This provision of the copyright law (section 92A) would have created new enforcement provisions in the law for terminating the internet service accounts of repeat copyright infringers (i.e., the illegal downloading of copyrighted material over the internet). Since February 28, 2009, all other provisions of the new Copyright (New Technologies) Amendment Act of 2008 are in full force. See Reftel for full background details. ¶3. (SBU) Econoff learned from Tony Eaton of the NZ Motion Picture Association (MPA) that Minister Power met on May 12 with Eaton, Campbell Smith, CEO of the Recording Industry of NZ (RIANZ),Brett Cottle, CEO Australian Performing Rights Association NZ and lawyers from the Copyright Division of the Ministry of Economic Development (MED) to discuss Power's three-step plan to re-draft and enact section 92A by end of 2009. The Three-Step Plan -------------- ¶4. (SBU) Step one will consist of assembling a panel of five leading intellectual property law experts charged with re-drafting S92A. The panel has a July 2009 deadline to submit its version to the Copyright Division of MED for review and approval. The panel will consist of: --Judge David Harvey, previous Chair of NZ Copyright Tribunal, --Susan Frankel, current Chair of NZ Copyright Tribunal, --Paul Sumpter, member of Copyright Tribunal and Professor of law at University of Auckland, --Clive Elliot, Auckland attorney, IPR expert and author of legal texts on patents and copyright issues, --Andrew Brown QC, Auckland attorney and expert on IPR, former partner in the Russell McVeagh law firm. ¶5. (SBU) Step two will be a consultative period among MED, the IPR rights holders and the NZ telecommunication firms (i.e., the NZ internet service providers - ISPs) to be concluded no later than September 2009. Minister Power has made it clear to all parties involved in the process that the initial voluntary code of practice hammered out WELLINGTON 00000115 002.2 OF 002 between the IPR community and the telecommunication industry will remain as a foundation in the current process and will not be rolled-back or renegotiated. As for the earlier March 23 deadline, both industries had reached agreement on most provision of their proposed code but remained deadlocked on two "minor" items: --how to deal with fees (costs imposed on IPR rights holder for submitting termination requests to ISP) and --length of time needed to process termination (time between notice of infraction and final cancellation of internet service of violator-one versus two month lead-time). ¶6. (SBU) Step three will be the legislative period where the newly revised section 92A moves to the Parliament's Select Committee for public notice and comment. Minister Power wants the law to proceed through this period and be enacted and in force by end of December 2009. In the meantime, the IPR community has engaged the services of Price Waterhouse consultants to do a cost-benefit analysis on the potential losses to the NZ economy if the new S92A fails to be enacted. The IPR industry wants to be prepared to counter any false claims by opponents of the new provision who successfully managed to monopolize the local media's attention in the last round. Comment -------------- ¶7. (SBU) 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. End Comment. KEEGAN