Response to APRAs Statements on the Creative Freedom Foundation

(crossposted from Bronwyn’s post on CreativeFreedom.org.nz)

We were disappointed today to discover that APRA are ramping up their efforts to push for Section 92A: a flawed law that presumes Guilt Upon Accusation, punishing internet users with disconnection before a trial and before any evidence is held up to court scrutiny. Similar laws overseas have been used to stifle free speech and harm public rights. Since our launch one month ago thousands of artists have rejected the idea that the creative sector want injustices like this done in their name. No one wants to deprive money from artists, but this particular law is an inappropriate and extreme measure for dealing with the problem of copyright infringement. Our response to APRA follows...

Their press release,

Tuesday 20 January 2009
FOR IMMEDIATE RELEASE
Attack on Copyright Laws Refuted

Recent attacks on New Zealand's new copyright laws are mischievous and ill-advised.

APRA's Director of NZ Operations, Anthony Healey says, "The suggestion that the new legislation was "draconian" or presumed simple "guilt by accusation" is ridiculous. It is a continued attack on our songwriters whose ability to make a living from their music has already been compromised by widespread illegal file sharing on the internet by those who believe it everything should be free and by the internet companies that profit from it".

S92A requires ISPs to develop a code to deal with repeat copyright infringers.

No one is seriously saying that "everything should be free" - especially not the Creative Freedom Foundation. APRA appears to be arguing a black and white case - that you are either for this law, or believe that "everything should be free". This stance is both ill-informed and absurd.

S92A requires ISPs to act upon accusations of copyright infringement and to punish with internet disconnection before a trial and before the evidence has been held up to court scrutiny.

CFF agrees that copyright infringement is something that needs to be illegal in the eyes of the law, however S92A falls well short of being an effective law that targets guilty offenders. In similar cases overseas, evidence detection techniques have resulted in many false accusations, punishing innocent people before a trial, and even appliances such as printers. Research has shown that if this law comes into effect in NZ, innocent kiwis may be framed. These laws have also been used maliciously by disgruntled employees, by businesses against competitors, and by those seeking to restrict critical commentary and free speech resulting in harm to basic public rights.

When France proposed a similar directive based on presumptive guilt it was struck down in the European Parliament as being against "a fair balance between the various fundamental rights.".

S92A presumes guilt upon accusation, meaning that the onus is on those falsely punished to go to court to prove their innocence. Although APRA purports to represent its members, APRA members themselves have spoken out against APRAs stance, calling into question how many more APRA members are being misrepresented on this issue.

APRA member and Wellington-based musician Phil Brownlee says: “As an APRA member, the thing that really strikes me about their public position is that it's not based on consultation with actual members (Or, if it was, not all of them.) It disturbs me that APRA seem to be uncritically repeating the (arguably fallacious) arguments of the big international publishers, which, from my point of view, are based on flawed understandings of the technological and social changes we're in the middle of.”

Another APRA member, Anthony Milas, says: "This law is poorly written and poorly thought-out in such ways that could lead to abuse of the basic human rights of ordinary individuals. If anything the public backlash sure to result from such a situation will make it even more difficult to educate the public and convince lawmakers of the necessity of sensible laws to protect creators rights.”

The Creative Freedom Foundation was founded by artists concerned by what was being done in their name, and in the name of protecting creativity through changes in copyright law. We urge APRA to discuss the actual issues around S92A in future letters to their members, rather than resorting to the absurd and baseless claim that those who believe in due process and fair trials must also believe that "everything should be free".
"Without such provisions every legitimate business model involving creative content on the internet is threatened" says Healey

No one is seriously saying that businesses shouldn't be paid. Conflating the issue of copyright infringement and Guilt Upon Accusation laws is dishonest and misleading.

Healey asserts that copyright infringement is a problem and therefore they need extraordinary powers to punish people before trials. Conflating these two issues 1) copyright infringement and 2) the lack of court involvement does not help the public discussion around S92A. Despite S92A's best intentions, it is still a deeply flawed and poorly drafted piece of legislation that has the potential to punish scores of innocent people.

APRA Board member, songwriter Arthur Baysting adds: "The scaremongering by the so-called Creative Freedom Foundation and the NZ Library Association is bizarre. APRA NZ has 6000 members, all of them songwriters. Music has real economic value and our music writers deserve food on the table and a roof over their head. We know some people want everything for free but the vast majority of songwriters expect and deserve to be paid".

"so-called"? ...good grief. The last time we checked, the NZ Library Association (LIANZA) was an intellegent and respectable organisation.

The Creative Freedom Foundation's petition now has over 4000 signatures. We don't dispute the fact that artists, just like everyone else, need to put "food on their table and a roof over their head". We ourselves are artists, so understand this just as much as the next guy. Again, conflating the very separate issues of 1) "some people want everything for free" and 2) the right to a fair trial is ill-informed and misleading. The Creative Freedom Foundation would like to propose that the list for artists be extended to "food on their table, a roof over their head, and access to the internet without fear of being wrongly disconnected".
Anthony Healey explains, "S92A is just one of a raft of changes made to the Copyright Act last year. In the changes were wins and losses for creators, consumers and telecommunication companies - reflecting the balancing act between all the competing interests. Legislators understand that ISPs profit from such traffic and have some obligation in dealing with a difficult situation".

Losses...including people's right to a trial? Where's the balance here? The last time we checked giving a huge amount of power to the accuser and removing the basic rights from the accused didn't constitute a "balancing act".
Healey continues "Currently APRA, RIANZ and other industry bodies are working with ISP’s to develop a code of practice. It will ensure that any policy dealing with infringers is reasonable and effective. The current campaign by the internet users’ community is premature and not helpful to the process".

Well our "current campaign" is run by and for artists. Artists too have the ability to use the internet -- just like most of the people in New Zealand. This "internet users' community" is a fairly substantial one. Furthermore, the campaign against S92A is not premature -- S92A has already passed in to law. Although not effective until 28th February, the law asks ISPs to judge infringement and punish before a trial, and this is what will happen if the law isn't repealed.

This campaign is not an attack on Copyright laws, infact we support copyright and its intention to protect artists and their work. What we don't support is the removal of New Zealander's right to a trial before punishment. We note that APRA's release "Attack On Copyright Laws Refuted" contains no refutation of the primary criticism made of S92A. We look forward to discussing the actual issues surrounding S92A in the future.

With thousands of people now speaking out against S92A – including artists, libraries, and the IT community – the Creative Freedom Foundation urges the government to repeal the law before it comes into effect on February 28th.