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replacing S92A in NZ's Copyright Act

I have been thinking through what to recommend as a replacement for S92A in NZ's Copyright Act, but I can't think of any better contribution than that provided by Stephen Franks just after the #blackout campaign. Some key quotes:

"... The new law upholds copyright holders’ property rights. It is fair enough, as far as it goes. ... [an] industry code is not the cure. It looks useful, but no lawyer with respect for the rule of law would suggest that a private code of procedure is the cure for a law that is incomplete and licenses abuse. As drafted it may be suitable for the ISP professionals, but it is too cumbersome for customers to master. ... Completion of the regime requires only an equivalent and balancing protection for the ISP and the customer’s property rights. That is straightforward - compensate the customer whose ISP is obliged to interfere without adequate reason, and compensate the ISP for any reasonable costs of investigating copyright claims that prove to be unjustified. The compensation rules can be clear enough and tough enough to discourage most if not all abuses of the new copyrightholders’ rights. ... Because the normal court system has become hopeless at enforcing remedies (other than in huge commercial disputes) the system may need a copyright claimant to post a bond for a pre-estimated cost of compensation, and perhaps a quick and dirty simplified adjudication system. ... The copyright claimant should have parallel rights to recover its full costs where a customer or ISP have unreasonably resisted a justified claim. ...These are not novel or radical ideas. They were the basic principles of British freedom for centuries. Leave people free to do what they wish, but if they wrongly harm others they’ll have to pay. ... Freedom plus liability is specially valuable for evolving circumstances where the lawmaker can’t predict how a prescription might warp future conduct. ... Too often reforming lawyers and politicians would much rather draft detailed prohibitions than balance the incentives, then leave discretions with the people involved, weighing the costs and benefits of their actions. ..."

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