In a previous post I looked at the aims of New Zealand’s 3 strikes law and then in a second post agreed with Dr Rebecca Giblin’s recent paper On the (New) New Zealand Graduated Response Law (and Why It’s Unlikely to Achieve Its Aims) that the law will have “limited success.” In this third and final post, I conclude that, at this point of time, the law is likely to fail in its primary aims but have some relatively minor successes. This failure comes at a cost.
Listed below are the aims of the 3 strikes law (as detailed in Part 1) and my assessment of the chances of success:
1. Appropriate protection for New Zealand creative industries so that they can continue to provide jobs for New Zealanders and continue to contribute to the economy.
Likelihood of success: No chance.
The law was passed in the name of protecting New Zealand creative industries. They are not, and probably will not in the future, use the law to send notices. Even for protecting overseas copyright owners, as one of the main cheerleaders for the law, NZFACT, itself says on its website, “the import and local replication of pirate DVDs are currently the most common manifestations of movie piracy in New Zealand… Weekend markets and swap meets are the main sales channel for pirates.”
What the New Zealand creative industries need to do is to sort out their licensing/distribution models and provide legal as well as easy and economical access to their works online. For the most part, New Zealand creatives are fighting obscurity and want to boost demand for their work. Peer-to-peer file sharing is a useful tool rather than undermining their economic potential.
2. Copyright owners with a low-cost, effective, simple, and fast-track additional channel for enforcement measures against illegal file-sharing.
Likelihood of success: Mixed.
In Part 2, I concluded that rights owners want the notice fee lowered while the additional channel provided by the law represents a lower cost path for them with a good return on investment. Besides the cost, rights owners are probably of the view that the law does not provide them with an effective or simple channel.
If the notice fees are lowered to $2 or less as rights owners want, the number of notices as well as the false-positives will increase substantially, inflicting pain on innocent New Zealanders. Given the amount of processing that ISPs need to do to comply with the law and the fact that the $25 fee only covers a part of their operational costs, there is little prospect of the notice fees being reduced.
3. An alternative to traditional methods of deterring copyright infringement.
Likelihood of success: Low.
There is no evidence that the 3 strikes law is acting, or will act, as an effective deterrent to copyright infringement. There was much confusion over the scope of the law and its complex provisions at launch. This confusion largely remains.
The ease of getting around the law was looked at in detail in Part 2, so I’ll only re-emphasise my view, “The reality is that only the ignorant, lazy or the naive are being captured under the law.”
The deterrence element could increase in the future if the Copyright Tribunal imposes harsh damages; the number of notices increases substantially; or the Government launches a sustained advertising campaign. All of these are quite unlikely so the likelihood of success on this score is low.
4. Educate Internet users, in particular youth and their parents, about the rights of copyright owners and the issues relating to the sharing of copyright works via the Internet.
Likelihood of success: Low.
The real chance to do so was when the law was introduced. Yet, the Government did absolutely nothing. NZFACT launched a propaganda campaign about copyright ‘theft’ but it was so wide that it was largely seen to be more of the usual noise. One effort that I was involved in for my previous employer- setting up the 3 strikes website and associated social media- tried to provide some balanced information.
The Government’s hope that the strike notices will have an educative effect has been at best marginal.
One area where there probably has been some limited success is schools and universities. Stung by their exposure to liability under the law, many of them have imposed tough rules on their students. However, how effective this has been in educating the youth about respecting and valuing the rights of copyright owners is debatable.
Anecdotally, the conversation amongst students is how to get around the law rather than comply with the 3 strikes law. It turns out that the ways to get around the law are the same as students use routinely to get around other Internet restrictions, such as accessing Facebook from school. This only reinforces the message to young adults that the law is an ass.
5. Effective limitation of ISP liability from illegal file-sharing by their customers (i.e. a safe harbour).
Likelihood of success: High.
This is one area that the 3 strikes law has actually been successful by clarifying and strengthening the safe harbour provisions for ISPs under section 92B.
Besides the safe harbour provisions for ISPs, one other potential area for success of the 3 strikes law is in relation to the (secret) negotiations of the Trans-Pacific Partnership Agreement (TPPA). The mix-up of redacting information related to the TPPA in publishing the Regulatory Impact Statement shows that the Government had at lease one eye on the negotiations when introducing the law.
I expect that New Zealand negotiators have been telling their US counterparts that the 3 strikes law means that New Zealand already complies with one of the USA’s key demands in the IP chapter of the TPPA- that ISPs meet the requirements of section 512(i)(1)(A) of the Digital Millennium Copyright Act (which requires ISPs to have “a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”).
The problem with this is that New Zealand has in effect given up its negotiating advantage and opened itself up to ratcheting up of the 3 strikes law. Arguing that New Zealand already complies with a key US demand means that we cannot ask for anything in return from the US. Instead, the US will probably demand that the Internet account suspension provisions of the law are brought into force which, as previously mentioned, only makes matters worse for New Zealanders.
It might therefore turn out that even in this respect the 3 strikes law is a failure.
A costly failure
While the 3 strikes law is likely to fail in its primary aims, the failure is compounded by the costs it has imposed (and will continue to do so) on New Zealand:
1. ISPs have had to bear some of the operational costs and all of the capital costs. The law provides an additional channel for copyright owners to enforce their private property rights but some of the cost to do so is imposed on businesses. To the extent ISPs pass this additional cost on to their customers, it is a cost imposed by Government on all Internet users in New Zealand.
2. Less tangibly:
- Reduction in the respect and trust that New Zealanders have in Government, politicians, and the law.
- Lower respect for copyright generally, including the moral rights of creatives.
- A fear of providing free Internet access to the public and even paid Internet access to tenants and in holiday homes.
- Given the lack of understanding of the role ISPs play under the law and how copyright owners detect infringement, public suspicion that their online activities are being inappropriately monitored.
In this series of posts I have evaluated the 3 strikes law against its aims and concluded that it is likely to fail in its primary aims while imposing a cost on New Zealand.
But, what if the law does succeed in meeting its aims? Will it really make a difference by increasing sales of copyrighted works? Will it lead to new and more creative works? Will it tackle the real policy and strategic issues of licensing, business models, and timely availability of content? Will it make copyright fit for an Internet age?
The answer, sadly, is “no”. That then is the ultimate failure of graduated response schemes like the 3 strikes law as a standalone policy instrument.