Last year, when I first heard about ACTA, I submitted an OIA request to the Competition, Trade and Investment Branch of the MED for any information about ACTA in order to make a submission. I recorded the results, and my progress on a wiki as well as my final submission. I was extremely disappointed as to the result. MED identified 91 documents but only provided 13, and those were redacted heavily, as MED advised that all the countries participating had agreed not to tell anyone anything. They were also all photocopies of text and thus not searchable but I’ve made the PDFs available from the link. Not a hugely successful result, from my perspective, but I got enough to complete my submission, so I left it there instead of referring it to the Ombudsman. You can only bang your head against the wall for so long, eh?

Don Christie (president of the NZOSS) wrote to MED to endorse my submission, and he and I went to a meeting with Judith Tizard (then Minister) and a bunch of officials from MED, MFAT and Customs to discuss our misgivings with ACTA. Again, not hugely successful, especially as Ms Tizard open the meeting with a comment about the “lunatic statements” appearing on the Net, which we pointed out was due to the lack of information being provided by the governments involved but they weren’t prepared to concede that there was anything to worry about. Yeah, right.

Anyway, while we were talking, Ms Tizard mentioned the Copyright Act and Section 92a in particular, as it was due to come into action in a few months. Now, I have to admit, I knew very little about it at that point, as I had been focussed on the format-shifting provisions, so I wrote a note to myself: “what is s92a about?”
and left it there. Since that time, I have learned a lot about it, as have many other people, and what I have learned ain’t that pretty.

In a nutshell, the original Bill contained section 92a up until it went to Select Committee, which removed it saying:

Requirement for a policy to terminate accounts of repeat
copyright infringers
We recommend that new section 92A (clause 53) be deleted as the standard terms and conditions of agreements between an Internet service provider and its customers usually allow for the termination of accounts of people using the services for illegal activity. Moreover, new section 92C already requires an Internet service provider to delete infringing material or prevent access to it as soon as possible after becoming aware of it.

While the Bill was in Committee in the House and after the Select Committee report, Ms Tizard introduced Supplementary Order Paper 193which put it back in, saying:

it adds a requirement that an Internet service provider (ISP) must have a policy for terminating the accounts of repeat copyright infringers (newsection 92A):

In the Committee stage, Christopher Finlayson (now Attorney-General) spoke in support of the change saying:

The first makes some changes to new section 92A, and I need not go into that in any great detail. We support what is being done there. Essentially, it is putting back into place what had been there before the bill went to the select committee.

And that’s it, people. That’s the entire mention of 92a when it was reintroduced.n No debate, no reasoning, no refutation of the logic of the Select Committee or the many submissions against it, and ignoring the advice of the independent reviewers employed by the Select Committee (Earl Gray, Simpson Grierson and Geoff McLay, VUW). In fact, even the views of their own officials. Tucked away on Parliament’s site is the Officials’ Report on the COPYRIGHT (NEW TECHNOLOGIES AND PERFORMERS’ RIGHTS) AMENDMENT BILL:
Clause by Clause Analysis, which summarizes the positions of the submissions to the Select Committee. On page 77 of the PDF (which is page 94 of the report – the report starts on page 18, as it is part of the Departmental Report that is supposed to summarise it. Only, it doesn’t appear to, to me) the submissions on the area of ISP liability begin (table row 234 – they are numbered).

Row 239 has a comment from RIANZ:

The section 92A (relating to a policy for dealing with repeat infringers) requirement is appropriate and is supported.

No big surprise. But the response from officials is:

Disagree. ISP standard terms and conditions generally already allow for the termination of accounts of people using the ISP’s services for illegal activity, and section 92C already provides for removal of infringing content. There is no clear need for a further requirement for termination of accounts. It is recommended that this clause be deleted.

Say what? “There is no clear need for a further requirement for termination of accounts. It is recommended that this clause be deleted“. Even the officials wanted it gone. So why did it go back in? What was the rationale for putting it back in? Who did the lobbying and what did they say, and when?

As a result of this, and after consulting some other people, I’ve sent in some OIA requests. Basically, it’s the same request to the Attorney-General (Christopher Finlayson, for the Crown Law Office), the Minister of Economic Development (Gerry Brownlee), the Minister of Commerce (Simon Power, for the Competition, Trade and Investment Branch of MED) and the Minister of Justice (er, Simon Power, again).

The text of the OIA is essentially:

Dear [minister_name]

Congratulations on your appointment as [minister_title].

As [minister_title], you have responsibility for [ministry_details].

I am writing to request information under the Official Information Act.

Specifically, please can you supply me with any and all reports, correspondence and advice that the [ministry_title] created or received for or from Ministers, Cabinet, Select Committees, other Government agencies, copyright holder organisations and lobby groups since 1 January 2007 on the subject of requiring ISPs to have a policy to terminate Internet accounts of accused copyright infringers, as was inserted into the Copyright Act as Section 92a by the Copyright Amendment (New Technologies) Act 2008.

Yours sincerely

Mark Harris
Technology Research and Consultancy Services Ltd

I’ll keep you posted as to progress on the ACTA wiki under a new section. Watch this space.