Q&A with the RIANZ CEO Campbell Smith

Thank you for your questions. I've forwarded those to Campbell Smith, and here are his answers.

Thanks Campbell for a speedy reply with a set of good comments on your questions.

Please feel free to comment in this thread that is now unlocked again.

---

Readers: Why is a performance licence required for business areas to have the radio playing in the background?

Campbell Smith (RIANZ): A licence is required because copyright legislation provides rightholders with the right to licence music for this use. And that is because businesses use music as a resource to attract customers. Independent research has shown time and again that playing music attracts customers, keeps them in a store longer and increases the amount of money they spend.

Further research has shown that music can boost productivity and employee wellbeing. Businesses can choose not to play music on premises, but they choose to play it because they know it is effective in creating an atmosphere that draws people in.

Here in New Zealand, PPNZ (RIANZ licensing arm) has a public performance licence for premises playing recorded music only (not radio broadcasts), whereas APRA has a public performance licence for premises playing radio and sound recordings. You don't need a PPNZ licence for playing the radio in your business premises.

Q: What percentage of the royalties collected by the PPNZ is returned to the artists?

A: For New Zealand recording artists, 50% of the earnings from local recordings get paid directly by PPNZ to our member recording artists via the RAP fund (Recording Artist and Producer fund – check out RIANZ website fore more detail). If the artist also owns the rights to the recording, the member artist would get 100% (as many local artists now do).

For international artists, PPNZ distributes 100% of the relevant earnings to its members and the members distribute the artist share to the artists (most contracts provide for artists to be paid 50% of the royalties earned from public performance).

PPNZ’s operating overhead runs at less than 15% of gross income. So over 85% of the money PPNZ collects is distributed to member labels and recording artists.

As an artist manager I can tell you that the RAP fund is an extremely important income source for New Zealand recording artists. It is hard to earn a living in NZ as a musician (especially with piracy levels where they are), and this income is critical.

Q: What efforts are RIANZ putting into making it easier for people to purchase content legally, eg through online stores? What are your plans for the future of online store and how do you see "downloading" in five years time?

A: Record companies worldwide have licensed more than 10 million tracks to over 400 online music stores. It is clearly in record companies’ interests to make their works easily available to the public via licensed sites and services and that is what we need to continue working toward in New Zealand.

Increasingly these services are not just about a-la-carte download sales, but, for example, allow users to access music bundled with ISP subscriptions or mobile phone handsets, or listen to music free on advertising-supported services.

It has never been easier to access music legally online here. Legitimate online NZ music stores include Amplifier, Digirama, iTunes, Ripit, Vodafone Music Store and Telecom Music Store.

It is a critical focus of RIANZ and its members to continue to provide content to consumers legally, with easy access, at a reasonable cost and in as many different ways as possible. My personal feeling is that in the next 5 years we will see a real growth in subscription based services – payment of a regular amount by a consumer entitling access to millions of recorded tracks.

Q: In your view, what are the main causes of piracy in New Zealand?

A: Content being accessible for free. Independent research has found that the main driver of piracy is the availability of music for free. For example, a recent survey in the UK by Entertainment Media Research found that 7 in 10 file-sharers cited the availability of free music as their reason for using peer-to-peer networks and our focus group research in New Zealand suggests that it is a similar driver here.

Most of the music distributed on file-sharing networks is chart music, so it is not really a case, as is sometimes argued, of consumers accessing music that is not commercially available or browsing for new music.

Although one of our biggest problems in this context is infringers illegally downloading pre-release music – new music leaked before it is commercially released. This causes enormous damage to legitimate retail markets, as well as to artists and rightholders. And I just don't believe those file sharers who say that they illegally download, listen to it, and if they like it they then buy the track(s) legitimately and delete the infringing file(s). If I’m wrong and that is you, remember that there are opportunities to “try before you buy” through legal streaming and samples.

Q: RIANZ and other copyright holder organisations appear to have taken the position that ISP customer disconnections after infringement notice is the appropriate interpretation of what S92A requires in terms of a "reasonably implemented" policy for disconnection. This interpretation is similar to requirements of the law in the USA and Australia. What is the basis for this interpretation (ie, NZ piracy behavioural patterns, availability of alternatives to piracy, cultural factors, legal and ethical principles, impacts, laws in other countries)? Please be as specific as possible as to the factors that have lead to the RIANZ asserting that this approach to S92A is correct and appropriate for New Zealand.

A: That’s a complicated question! I believe that this approach is appropriate as it allows for account holders to be made aware through education notices/warnings that copyright infringement is happening on their internet account and provide them with an opportunity to take appropriate action to prevent further infringement – by stopping infringement, talking to kids who might have been using the account for infringing copyright and make them realize they have to obey the law, double-checking that access to your account is protected (as any reasonable internet user would do) etc.

Research shows that the threat of the ultimate sanction of disconnection in itself should be sufficient to stop the infringing without the need to terminate. But for repeat infringers who are unwilling to change their behavior, there has to be a real consequence for that choice. But certainly my hope is – and research clearly shows that this will be the case - that the process educates users and leads them to change behaviour well before the termination sanction would kick in.

And I think that S92A (and the code that we hope ISPs will apply in order to comply with S92A) is a preferable way to deal with infringing (aside from persistent infringers) than it is to sue infringers. I have personally never been in favour of suing copyright infringers in the on-line environment as a first course of action. I am committed to a policy of education and warning infringers, letting them know about copyright, its value and importance to creators, than taking them to court.

Of course we would have to take court action against persistent and flagrant infringers if there is no other option. But I think this approach under s92A is the right moral and ethical approach to choose as it gives people a chance to change behavior. as well as, under S92A, the right legal one.

Q: Do you believe the infringement notice generation mechanisms are reliable enough to be accepted by a court? What methodology will be used by RIANZ to determine who exactly is a copyright infringer? Are you confident that it is foolproof? What verification process is used?

A: Yes, we are confident that this is reliable enough to be accepted by a court. The evidence gathered consists of publicly available information about the IP addresses used at a certain time on a certain date to upload copyright infringing material. The evidence supplied by us is synched to a trusted atomic time source and based on ICANN (APNIC) information regarding the allocation of Internet protocol address spaces.

Anyone can log onto file-sharing networks and note the IP addresses used for uploading content, since the uploader makes this information publicly available. This type of evidence has been accepted in countries around the world as the basis of criminal and civil legal actions.

We are confident that the standard of our evidence gathering process is robust enough to be accepted by any court in New Zealand, as it has been internationally. To date the evidence provided by IFPI, the International Federation of the Phonographic Industry, has always been sufficient for a court. RIANZ, as an IFPI member, would use the same standard of evidence techniques and technologies. We have been through the evidence gathering process with ISPs here in NZ and we have had no concerns raised about the robustness of our evidence.

Q: What alternatives has RIANZ considered other than S92A and the Code of Conduct negotiated with the TCF?

A: Education is our big focus moving forward. But that is complementary to the code of conduct/s92A process, rather than an alternative. Aside from the education initiatives we undertake, the only other option available to us under Copyright law was/is to sue infringers in civil court and/or press criminal charges. As I said above, I have resisted taking the path of suing people as has been the case elsewhere as I believe it is preferable to try to change the behaviour of the internet users than it is to sue them. However, the option of civil action remains very much open to us for serious online infringers.

Q: Do you believe that S92A and the proposed Code of Conduct will significantly reduce the amount of piracy in New Zealand in the long term? Please take into account the mechanisms users can use to circumvent infringement detection.

A: Yes. I believe that a combination of new and improved user-friendly services, consumer education and the code of practice will work to persuade people that it is easier to obtain music legally and risk free.

I believe there is a great proportion of the community who might be currently infringing who will change behaviour once we have a code in place and it is operational. However I’m not so naïve as to believe that everyone will change behaviour and there will be some people will try to find a way to continue infringing. But as I said above, we have other avenues and legal remedies remain available for rightholders to identify and take action against those who continue to infringe.

Q: What I don't understand is why is RIANZ supporting s92a when Internet connections could be terminated without knowing who actually downloaded the copyright material. For example I come to your house and you let me use your computer. I go onto the Internet and download some copyrighted material. Your ISP receives an accusation from a copyright holder saying you downloaded copyrighted material, so your Internet connection is terminated, even though I downloaded the illegal material using your computer. Could you explain?

A: First, in your example I’m not getting my internet account disconnected unless I've already had at least 2 previous education notices/warnings. This same scenario would have to happen 3 times at least under the draft code (and under rightholder proposed changes to that code) before the termination sanction would kick in. Secondly, just as an account holder has to be responsible for paying the bills for his internet connection (no ISP to my knowledge provides its services for free so far), the account holder should also be responsible when notified that his/her connection is being used for illegal purposes. And consider looking at it this way: under the proposed code of conduct, a mother for example would receive an education notice that her children (or their friends) have been illegally uploading music or film to the internet. This would give her a chance to raise the issues involved with illegal file-sharing with her children.

It seems to me to be preferable to receive such a notice than legal action in the first instance as happens in some other countries.

Q: There are artists who have explicitly encouraged the sharing of recordings of their shows. The Grateful Dead, The White Stripes and Wilco are prime examples that I am aware of. How will you differentiate between downloading of this material and the downloading of "pirated" material? If the people that put together a recording and control the rights to it want to make it available for free that’s their choice.

A: Absolutely. What is wrong is other people taking the decision for the artist, composer or producer, distributing their music without their consent on the internet. We do not and would not take any action, including sending notices, against people downloading licensed free downloads. Our evidence gathering techniques can distinguish between such tracks and illegal, unlicensed music.

Q: I would welcome your thoughts on this article from the LA Times (about bootlegs, old unreleased recordings etc shared on internet).

A: I have seen this link posted on the Geekzone website, however cannot open it, so it is not possible to comment in full on this. I understand though that this is about bootlegs and old, unreleased recordings shared on the Internet. This seems to raise two points.

First, the availability of older recordings and material. Rightholders are digitising old material as I write, but with decades and decades worth of material it takes time to digitize entire catalogues. Secondly, I understand the article is about bootlegging and sharing of concert recordings and the like, and to this I think that if the owner(s) of the rights in that music or recording want to enforce their rights then they should absolutely be able to do so.

Q: Why are the RIANZ insisting on cracking down on copyright infringers via section 92a, instead of to giving them cheap, ready access to music online using existing methodology such as bitTorrent?

A: These two concepts are not mutually exclusive, its not “one or the other” in terms of approach, it can be both. We need to work hard to provide as much content as we can, as cheaply as we can, as fast as we can and in as many ways as we can so that we can keep fans and attract more fans.

That’s a positive challenge for our business. But there must always be consideration going to the songwriter, the artist, the musicians, the producer etc of the recordings.

There are great new services being rolled out in Europe that allow people to listen to music in a huge variety of ways and I want similar services to roll-out in New Zealand. But it’s hard to make an investment case to retailers to open in a small market when piracy is prevalent.

I don't think record companies have anything against the bitTorrent protocol, just that it is not a system that can be abused to distribute unlicensed music. If someone has a workable business plan to utilise bitTorrent as a safe and workable distribution mechanism then I am sure labels would talk to them.

Q: How do you envisage an ISP will determine the merits of a copyright infringment accusation? What would be the process be normally?

A: First, we hope there will be a uniform ISP approach so that everyone knows where they stand.

Secondly, under the process we are discussing with the TCF on behalf of ISPs, rightholders would approach ISPs with the details and evidence of infringements (to a specific standard required under the code), including the title and the file name(s) of the infringed copyright work(s) in question, the exact timestamp and the time zone of the infringement, the protocol used, as well as the IP address that was used to distribute music onto the internet for millions of people to download. The ISP would then send a warning and education letter to their user. The user, of course, has a chance to respond if they believe there has been a mistake.

Q: RIANZ won't be the only company making accusations under s92, how can we prevent other rights holders from using section 92 maliciously? We are confident that RIANZ’s evidence gathering will withstand any scrutiny. Under the proposed code, ISPs will deal with RIANZ (and other eligible rightholders) as a pre-approved rightholder, depending on RIANZ maintaining an agreed standard of evidence for each notice. We are confident that the techniques and technologies that our investigators use will not lead to an incorrect notice sent to the ISP.

Other non pre-approved players would have to meet similarly robust evidence gathering thresholds when sending notices to the relevant ISP. Failing to meet that standard of evidence would invalidate any notice. There is also likely to be a cost involved in filing a notice by non pre-approved parties. Under the draft code any malicious notices could be identified as being sent maliciously, as all notices sent to users can be challenged by the user.

Q: The USA's RIAA has made numerous false accusations, and cases that don't stand up in court - what assurances can you give that RIANZ's processes will not have the same error rates?

A: Admittedly, I am not an expert on US litigation and it should be really RIAA that answers this question. However, I understand that any “errors” made have not related to mistaken identities, but to the fact that someone in the household other than the account holder was directly responsible for the online infringement. And this is the point that shows the benefits of the system of warnings contemplated under S92A and the proposed code – it allows for discussion and for a user to change behaviour before the matter gets anywhere near a court.

I understand that under US law, litigation must be commenced in order for the copyright owner to obtain the identity of the Internet account holder. S92Aand the code take a different approach, allowing people to be warned and educated, without the need to bring law suits in the first instance.

Q: What's your take on remixing?

A: Remixing, like any other use of a copyright protected work, generally requires getting permission from the copyright holder(s). Unless they are only using their own works, users have to make sure that licences are in place where they are needed – and this depends on the specific circumstances of the use in question.

The relevant provision under New Zealand law for this use is section 16(1)(f) of the Copyright Act – making an adaptation of a work. I know that many artists and rightholders make work available on-line for remixing by fans for example. But that is their choice to allow that type of use with their works and, of course, we have no issue with that. I had a crack myself once. My remix added nothing to the world of art and culture!

Q: Do you fear the next generation will have very little or any for copyright as a result of being labelled criminals for activities like copying music videos to their ipods or remixing their favourite songs?

A: My fear is actually that generations of users have no idea about copyright and why it is important, why it needs to be respected. Education is crucial. And we need to clearly define the difference between legal use and music piracy. If you buy a track online, it is okay under NZ law to make a copy to play in your car or transfer it to listen to on your personal music devices like an ipod – this is called format-shifting and this is fine under the NZ law (the law was changed to allow this at the same time as S92A was inserted!) and I think its totally fair.

Although at the moment the format shifting provision applies only to audio recordings, not audio-visual recordings, which is a bit odd. As long as you make the copy of the music recording for your own personal use or the personal use of another member of your household and provided that the copy is made from a sound recording that is not an infringing copy, you are fine. There is also a limit of no more than one copy for each device for playing sound recordings that is owned by you and you have to retain the ownership of both the sound recording and of any copy that you make.

Many countries around the world have similar provisions in place. And I think these provisions are good in that they achieve two things at the same time. First, they ensure that the creators behind that music still can make a living from creating that music. Secondly, they allow people to fully enjoy the music they like, where they like – in their living room, on their mp3 player, in their car etc. By contrast, it is clearly not so-called “fair use” or “private use” to distribute a track on the internet for millions of people to download or run off copies to sell or distribute to others. I think that’s common sense and most people understand that.

Q: If numerous accusations from RIANZ are shown to be false, will you eat your hat?

A: Yes. I will fall on my sword and eat my hat. Hat first.

Q: What makes you think applying s92a is going to increase your sales and or have a positive impact on the reputation of the RIAA and their members? To me disconnecting your target audience from the internet is only going to alienate them and at the very least take their ability to download and buy music/movies etc from places like itunes?

A: First, RIANZ represents record labels and recording artists in New Zealand and is a distinct entity from RIAA, which represents rightholders in the USA. Secondly, yes, I am very concerned about alienating our customers. Absolutely. That's why I think a process that focuses on education and warnings before we get anywhere near account termination is the right path to take. No-one will have their internet account disconnected if they agree to stop breaking the law after being caught and warned. It’s a last resort sanction that exists to nudge people’s behaviour in a lawful direction.

A study from the UK by Entertainment Media Research shows that 72 per cent of users would stop infringing if contacted by their ISP. In France, IPSOS found that 90 per cent of file-sharers would stop breaking the law after two warnings. But an educational campaign will only work, if there is an ultimate sanction, some potential teeth to the process. We want to migrate people to legal services so they can enjoy music while those that created it can be rewarded for their work.

Q: The RIAA represents most of the major recording industries and calls themselves a non-profit-organisation. The RIAA claims to stand up for rightholders rights and claim that they are good and piracy is bad. However RIAA in America has been for a long time sueing poor college kids for silly amounts of money that they will never be able to pay off. How can the RIAA and other anti-piracy groups justify wrecking people’s lives and putting them in forever debt. However this does not seem like what the good guys would do. What is the RIAA view on this and do you plan to do the same things here?

A: First, as I said above, RIANZ is a distinct entity from RIAA. I do not work for RIAA and I do not get told what to do by RIAA . RIANZ represents record companies and recording artists in New Zealand. That includes 7 international record companies, but also 53 local, New Zealand-owned record companies and over 800 local recording artists. Those people are who I work for and answer to. Secondly,

RIANZ believes that the approach set out in S92A, and what should be in the code that ISPs adopt to comply with S92A, is the preferred course of action for dealing with this piracy issue in most cases. It allows people to be warned and educated, gives them the option to stop breaking the law, and even for the small number of people who actually refuse to do so, it involves only the closure of an internet account, rather than costly court proceedings and the payment of damages.

Q: Do you have plans to send out messages to people telling them that you have proof that they broke the law but you will forgive them if they pay a fee and they can keep their Internet access?

A: Absolutely not. We are not asking for money from internet users at any stage in the education and warning process. We simply want them to stop infringing.

Q: What do you say to all the many content makers who say they dislike this law?

A: I back the right of content creators and owners to distribute their work how they like, 100%. It must always be their choice to do as they will with their works. But our members are seeing their rights infringed in huge numbers on a daily basis, they haven’t authorized it and don't want to authorize it. We are seeking to rectify that situation, in relation to those works.

Q: What do you say to music makers who go on places like YouTube and say “just download my stuff”?

A: There are two aspects to this. As I’ve said above, the owner(s) of a created work can choose what to do with that work, whether to share it for free or seek the protection of copyright laws. However, often they don’t want to share their music for free and more often than not there are other holders of rights who want to seek protection from illegal downloading/uploading of their music, too.

Record producers and composers have rights that need to be respected. Most artists do want to make a livelihood from their work and do not urge people to download unlicensed versions of their tracks. Artists know that if they can’t sell records then they will find it more difficult to attract investment in them in the future. That’s why true fans of artists respect them and obtain their music legally.

Q: You say you’re against piracy but if you really are then why don't you do something and offer alternatives? For example an option that lets me listen to all the music I like – and the more you buy the more the song prices decreases. The price could be based on the number of songs you have purchased over a certain period of time, or for example some on-line service that charges me a monthly fee for unlimited music streaming, with the option to keep a certain number of songs per month, as offered by Real in the U.S.?

A: I’ve said it earlier in these answers, we need to provide numerous legal, legitimate services for our consumers. And that means in NZ. RIANZ and its members are striving to do that. But you have to respect copyright, nothing justifies you just taking what you want in this environment without consideration for the creators.

Record labels have licensed more than 10 million tracks to over 400 legal online music services worldwide. Several of them are available in NZ, such as Digirama, iTunes, Amplifier etc.

In New Zealand, you can get music through your mobile, you can get music for free on advertising-supported services, you can download a-la-carte tracks.

I think the very near future holds access to vast libraries of music through multiple subscription services. You can listen to music on streaming sites. It has never been easier to get music legitimately in a way that respects the rights of artists, composers and producers. And its getting even easier.

Yet it is impossible to compete against free downloadable unlicensed music. That is why the law needed to be reformed. There have been some people that have floated the idea of a compulsory license paid for by all those with an ISP connection, but RIANZ has never advocated that.

We believe commercial offerings providing both users and rightholders with choice are far more fair and effective. There are deals in Europe that enable broadband users to gain access to vast libraries of millions of tracks as part of their subscription. We need such packages to be available in New Zealand to supplement the legal a-la-carte download stores that already exist and we are working hard on this. But the required investment in these services will always be stunted if music is available wholesale unlicensed and for free.

Q: Would you be opposed to fines for wrongful accusations under this new law?

A: Yes, since this will not be necessary. All notices sent to users can be challenged by the user and double-checked by the ISP, if it concerns a technical issue regarding the internet account in question, and by the rightholder and potentially by an independent third party, if there is a question about a copyright issue such as whether copyright was actually infringed in the music file in question.

This facility to double-check notices is one main reason why the new law does not impose “guilt upon accusation”. If it is an error regarding a technical issue, that wrong information would come from incorrect ISP records and could be easily rectified by the ISP, and in the unlikely case that there is an error regarding a copyright issue, this can be double-checked and clarified by an independent 3rd party (a process which is being considered for the ISP code) and the rightholder.

What is needed to make a termination process work, including a user dispute procedure, is a fair, but quick and efficient system. A fines regime is not needed for the rare mistake that can be fixed, and would considerably hamper the speed with which copyright infringement can be stopped.

Q: Why does the record industry prevent us from downloading legal content from the likes of Amazon and iTunes? I see way more music on U.S. iTunes than I see on the NZ iTunes?

A: In the global market, each country has its own laws, currency and economic environment within which businesses must operate. Record companies operate within these boundaries representing local and international artists alike and therefore licensing agreements with music providers such as iTunes reflect that environment.

Sometimes it sucks, but we work hard to make sure that this environment quickly improves and that the music provided for New Zealanders is as comprehensive as what is provided anywhere else in the world.

Q: Does your interpretation of this act support the invasion of privacy of citizens?

A: No way. At no point under this new law and the proposed code do the rightholders identify the individuals behind the IP addresses being used to infringe copyright. Users make their IP addresses available when they begin to upload content onto file-sharing networks. But their ISPs would not need to turn over the users’ identifying information to rightholders, who will simply provide them with the publicly available IP addresses.

In order for a dispute over copyright to be settled perhaps by a third party, the disputing party may, by their own consent, reveal their identity to the rights holder in question in order to claim their rights and enable the dispute to be settled. But that would then be the choice of that party.

Q: Do you think sales of CDs will suffer as a result of the industry making consumers angry? Can the industry handle an angry world of consumers who vote with their feet and their modems? Couldn't you come up with a less punitive solution?

A: I’ve said it above – I’m very concerned that we don't alienate our customers. Refer to my answer above for more detail, but this is why I think an education-based process like that contemplated by S92A and the proposed code, is the right route to take.

Having said that, I think the music industry cannot survive in a world where tracks are distributed illegally for millions of people to download without any consideration to creators, without any revenue being ploughed back to invest in new talent. Record companies and Artists invest significant portions of their revenues in further recording – and, in the case of record companies, to discovering and nurturing new talent. If people obtain music through unlicensed services then no revenue flows back to the creators of those tracks, reducing the incentive to invest in new music in the future and ultimately limiting consumer choice.

We’ve already seen labels shedding jobs and shutting up shop. This will get worse if no action is taken. But I think most people are law abiding and do believe that those that make a living from creating music should be paid for their work.

Q: Why do you think it should be reasonable that an internet subscriber has their account disconnected on (unproven) allegations of copyright infringement, when it would take a court order (after proof of wrongdoing has been presented and debated over in a court) to have one's account disconnected in any other case of illegal activity (aside from the ISP voluntarily enforcing their TOC)?

A: As you infer, if you use your internet connection to infringe copyright you are breaching the terms and conditions of your broadband subscription, just as if you don’t pay your bill. And ISPs don't go to court to get proof of that! But that’s not really your question, I know. We do not want people to lose their internet account, we want to nudge their behaviour so that they start to use great value legal services and stop breaking the law.

Court proceedings, as have happened in other countries, could lead to infringers paying thousands of dollars in fines and I don’t think that is a preferable solution. And no one is getting their internet account disconnected under this proposed code without have received at least 2 previous education notices/warnings along the way. And the process also contemplates an independent 3rd party considering disputed notices by users.

I think it's a pretty fair and robust proposed procedure and I think it's a better route than suing people first up.

Q: Why should ISPs bear the burden of S92a when the RIANZ is not prepared to bear the burden of protecting their copyrights just as any other civil issue is enforced by the affected parties?

A: Rightholders, including RIANZ, are certainly prepared to bear the burden and have taken legal actions worldwide where necessary, but this is a better solution. As I have said, I don't want to sue people when this option is available.

The option to educate, to provide a period in which users can reform infringing behaviour, to provide numerous warnings and then to provide, as an ultimate sanction only, for an internet account to be disconnected. It is more effective and less punitive. ISPs are effectively the gatekeepers of the internet. They are in the best position to ensure that their subscribers do not repeatedly break the law. Rightsholders will bear the burden of investigating and gathering evidence on those users who they believe are infringing their rights under copyright law.

Q: Why should the New Zealand public trust RIANZ to be the judge, jury, and executioner, where in all other cases that job is for the courts?

A: They shouldn't and we are not asking them to. S92A and the proposed code do not place RIANZ or any rightholder in the position as judge, jury and/or executioner. There are no legal penalties here such as jail or fines.

Rather this is an issue about enforcing terms of service, namely the repeated abuse of an account in violation of copyright law and the refusal to stop. RIANZ will simply act on behalf of its members to bring copyright violations to the attention of ISPs. The ISPs will contact their subscribers with education and warning notices. And there is also independent 3rd party to consider notices challenged by users, a process which is currently being considered for inclusion in the code.. We believe that these notices, backed by the reserve sanction of disconnection for those few who refuse to cease infringing, will change people’s behaviour. I believe this is preferable to taking individual infringers to court and suing them for thousands of dollars, as has happened in other countries.

Q: With the RIANZ's stand on S92, how do propose you will tell the difference between 'song downloading' and 'listening to radio streams' on the internet? For example, a streaming radio service sends metadata about the current song and artist which is playing. Could this be assumed as 'breaching copyright' and would the person receiving the stream be prosecuted under S92 with RIANZ's support?

A: Our detection and evidence gathering techniques will be able to distinguish between the two and only where copyright has been breached, will ISPs be informed under S92A.

Q: What is the RIANZ most fearful of: People enjoying your content for free; or, people creating content that is not represented by you?

A: Not people “enjoying” content, people stealing content is what RIANZ is concerned about. RIANZ is protecting the rights of its members to prevent their creative content from being illegally shared across the internet. Other rights holders have the option to do the same but that is up to them. We can only represent the rights of our members.

Q: Does RIANZ believe that The Prince vs Baby story is a valid reason for someone to lose their Internet connection? Or in another example does RIANZ believe that hyperlinks that just point to content is a reason to remove someone's Internet connection? Only in New Zealand, instead of the content being removed from the network, the user will have their Internet connection disabled.

A: S92A is predicated on repeated infringement and allows for account holders to be warned, even several times, about their behaviour through notices, and have a period of time to stop or prevent further infringement occurring. Only if these warnings are not heeded will someone’s internet account be in jeopardy.

Unlicensed syncing of music to video (as in the Prince vs Baby case) and hyperlinking to infringing content can constitute copyright infringements and therefore Section 92A does come into play - if such conduct is repeated and the user refuses to stop, there can be consequences. I accept that some people will not know this and that is why there is a system which contemplates several notices and which is education focused.

Q: Why did RIANZ let a NZ jukebox manufacturer not pay the tens-of-thousands in fees that were owed? Why is this manufacturer still in business? Why are you going after the "little fish" when the big fish are obviously getting a free ride?

A: You are obviously referring to a specific concern here and its not really relevant to this discussion. I am happy to discuss your concerns with you if you contact me at the RIANZ office.

Q: How will Copyright violations be detected? (Passive or Active techniques?) How does the anti-piracy technology avoid comitting entrapment, since an active detector must advertise copyrighted material to a P2P network?

A: The evidence gathering techniques used will download and verify copyright material already being offered publicly and will not involve entrapment at any stage.

Q: How does RIANZ justify its position that the burden of proof should lie with the accused to prove their innocence, rather than the accusor to prove guilt with evidence that is not admissible in court? In RIANZ's words: "Users should be required to produce sufficient evidence as to the reasons why they believe the alleged infringement has not occurred...".

A: As an internet user myself, I can understand your concerns. However, this is not about “proofless accusations”. As I have explained before, as a pre-approved rights holder under the proposed code, the evidence we submit is real proof - complete with time stamps and details about the IP account in question and the protocol used and that copyright was infringed. Its evidence that has been tested in court and never failed, it has been explained to ISPs who have expressed no concern about its quality.

As I have said earlier, we are not talking about a judicial process here but an enforcement of terms and conditions of contract (your internet account agreement with your ISP), with opportunity and time along the way to prevent/stop further infringements before anyone faces losing their connection.

Finally, I have been in discussions with the TCF over the Code including providing a mechanism for an independent 3rd party adjudicator as part of the overall dispute process to decide whether there has been an infringement in certain instances. This should add another check and balance into the process and safeguard users from false or malicious notices. I think this is fair and a balanced approach.

Q: Would your organisation support a move to redraft the current law in a way to produce legislation that both meets RAINZ's goals, as well as addressing the public's concern about fairness?

A: I don't think its necessary. What S92A provides is that ISPs need to have a policy in place. I think that self regulation through a Code of Practice which meets the intent of the law and is regularly reviewed can provide for a reasonable, pragmatic and widely understood implementation of the law. I welcome the fact that the government has indicated that the proposed code will be reviewed after six months to see if it meets all needs. This is fair for everyone. I would like to see how the market negotiated process works before we ask government to prescribe a process.

Q: News organisations and politicians are pointing at RIANZ as the reason that S92A exists. Does RIANZ accept responsibility for that section being re-inserted into the copyright act after it was removed during the select committee stage?

A: RIANZ was one of several rights holders in favour of providing protection of their intellectual property rights through S92A and believed strongly that this was necessary to protect the creative industries as a whole. Its crucial that copyright creators have their rights recognized and protected in the on-line environment.

As the Prime Minister has said, the internet is not the Wild West. And let’s not forget that every party in parliament voted for S92A when it was passed, except the Green party and the Maori party. Its not like it was snuck through in the middle of the night without anyone’s knowledge!

Q: We constantly hear a great deal of negativity from the recording industry which always focuses on how much money is being lost to piracy. These losses seem to always be compared to the decline in physical media (CD) sales. What we do not hear about is the impact of new technologies on the industry as a whole. I am referring to digital music, ring tones, caller tunes, etc. Can you tell us what the current state of the music industry is in New Zealand considering these new revenue streams?

A: In New Zealand, as elsewhere in the world, the decline in revenue from physical sales is not offset by the small rise in sales of digital media. Although we are obviously working to increase those new services and their level of return to the industry.

Illegal filesharing and uploading/downloading of content for free makes the situation that much worse, hence the need for this legislation to protect the rights and livelihoods of our creators, artists, producers, technicians, shop workers and everyone else involved in some way in the creative industries.

Check out www.rianz.org.nz for more detail on the state of our industry. But as an indicator, the record sales market in New Zealand has been in double-digit decline on a monthly basis at least since I started work at RIANZ in 2005. Maybe its my stewardship, but I’m pretty sure its primarily as a result of piracy.

Q: I am going to assume that iTunes is the biggest digital music store based on the number of iPod devices in our market. The recording industry focuses on lost revenue and as a tax payer I am also concerned about lost revenue. Does the RIANZ work with your international partners to ensure that online music stores such as iTunes are registered in New Zealand for the purpose of paying GST, PAYE and company taxes? Would you have an estimate on the projected loss of downstream revenue to this country from the taxes not paid here for offshore music transactions?

A: I take your point, but I’m not really in a position to provide detailed answers here, especially in relation to taxes! The legal digital music stores selling music in New Zealand do contribute to the economic well-being of the nation. Income from sales of recorded music in NZ comes to the NZ members of RIANZ, its artists and labels, which in turn allows them to have careers, reinvest in creating more content.

Illegal filesharing and uploading/downloading does not and certainly no revenue at all is flowing into NZ when music is being stolen.

Polemic

jpollock

Jama

richms

allstarnz

vinneh

freitasm

freitasm

Talkiet

jpollock

Screeb

Spenser

Polemic

dmw

barf