But if it is, it can be simpler and less punitive than the Bill currently before a select committee in parliament.
These points are made in a submission to the Commerce Select Committee on the Copyright (Infringing File Sharing) Amendment Bill. The document substantially reflects the priorities and issues raised at a series of public meetings organised by InternetNZ last month.
InternetNZ questions the need for the legislation on the basis of the continuing growth of earnings in the music and movie industries, whose lobbies often contend that the businesses are being destroyed by illicit file-sharing and downloading.
The submission cites a comment from the government's own Regulatory Impact Statement on the bill: "We are unable to accurately estimate the costs to the [entertainment] industry from illegal P2P [peer-to-peer] file-sharing since attempts to scale the problem have been fragmented or based on limited data sets." This, the submission says, echoes the view of the US General Accountability Office.
InternetNZ quotes several figures quantifying the growth of the local music and movie industries and suggests this demonstrates that the problem is not as great as surveys commissioned by "vested interests" claim. Any effect is chiefly, the organisation suggests, a matter of an industry that has failed to come up with new business models to cope with the impact of new avenues of distribution.
InternetNZ points to the Australasian Performing Rights Society/Mechanical Copyright Owners Society recording a 67 percent increase in revenue from paid downloads in 2007/8 after iTunes was launched. This is evidence that the problem may be righting itself, the organisation says.
Before any precipitate new law is enacted, its submission says wider debate is needed on the principle of copyright and the balance it creates between the rights of an original creator and "the interests of the wider community in propagation of ideas", the submission says. "We have not had that debate," InternetNZ says.
Assuming some measure is needed, it prefers a procedure that puts the emphasis on education rather than punishment. "It has been recognised by all involved that no system will stop infringement altogether. Steps which increase respect for the creativity of others are key," the organisation states.
The submission quotes figures from a survey conducted for the NZ Federation Against Copyright Theft last year, which found 70 percent of New Zealanders would stop infringement if they were sent an educational notice, whereas only 61 percent would respond in the same way if threatened with disconnection of their internet access.
InternetNZ expresses again its preference for a "notice-and-notice" regime, where the internet service provider is an information conduit and does not become actively involved in enforcement. "ISPs would receive notices from copyright owners, would match the details in those notices to their customers and would send educationally-focussed notices to them."
Such a regime is already provided in the Bill, the organisation says, as the first stage in the suggested "graduated response" system. This goes on to involve the Copyright Tribunal and courts in penal measures. The legislation should be changed to stop at the first stage, InternetNZ says.
If the committee decides a graduated response regime is needed, it should not include termination of a repeat offender's internet account, it says. Apart from that, the procedure as currently suggested -- if there must be one -- is "acceptable". Some attention is, however, needed to the definitions of ISP and file-sharing, to avoid punishing innocent parties and their activities.
The submission appends a detailed analysis of the bill by law firm Lowndes Jordan, which was presented at InternetNZ's public meetings last month.