New Zealand File Sharing Legislation Passed

Saturday 16th April 2011
Article written by: Thomas Huthwaite

On 14 April 2011, the New Zealand Copyright (Infringing File Sharing) Amendment Bill was passed by 111 votes to 11. The Bill had been debated under urgency in the days prior to its final vote.

A brief history

In 2008, the government proposed the Copyright (New Technologies) Amendment Bill, and in particular, the controversial section 92A. Section 92A provided that Internet Service Providers (ISPs) were to operate a system whereby they were to issue warnings to a user of their service for copyright infringement. If there was repeated infringement, internet service could be disconnected.

While the Copyright (New Technologies) Amendment Act was passed, section 92A never came into force. There was considerable public outcry about the prospect of termination of internet services, the Act’s broad definitions and the burden on ISPs to enforce the regime. The definition of ISP, for example, included any person providing connections for digital online communications or hosting material on electronic retrieval systems, making schools, government departments, and businesses all potentially accountable as an ISP.

What changes have occurred under the new Amendment Bill?

The Copyright (Infringing File Sharing) Amendment Bill repeals section 92A of the Copyright Act and replaces it with a graduated “three strikes” approach to the issue of copyright infringements. The process also minimises the involvement of ISPs and leaves decision making in the hands of the Copyright Tribunal.

The Amendment Bill also addresses definitional concerns raised under the prior amendments, primarily by replacing the term “Internet Service Provider” with “Internet Protocol Address Provider” (IPAP). This change aims to exclude schools, government departments, and businesses that provide internet access but are not ISPs in the traditional sense, and to focus on the function of an ISP that is relevant to infringing file sharing, namely through the provision of internet protocol (IP) addresses.

A brief summary of the infringement process is provided below:

• A copyright owner who believes that his or her copyright work is being infringed by an account holder of an IPAP’s service may contact the particular IPAP to report misuse of their copyright works.
• The IPAP will contact the account holder and issue an infringement notice. The type of notice will depend on whether previous notices have been issued to that account holder:

i. A detection notice informs the account holder that he or she has downloaded copyright material and that their actions are illegal.

ii. A warning notice informs the account holder of his or her second copyright infringement (having already received a detection notice).

iii. An enforcement notice informs the account holder of his or her third copyright infringement (having already received a warning notice).

• After the IPAP has issued an enforcement notice, the copyright owner can then seek from the account holder reparation in the form of damages of up to $15,000. The account holder will be required to appear before the Copyright Tribunal, which has jurisdiction to hear illegal file-sharing claims.
• Account holders have the right to challenge any notice, make submissions to the Copyright Tribunal refuting the claims, and request a hearing if they disagree with any claim that they have infringed copyright.

The Amendment Bill currently holds in reserve the power of the Copyright Tribunal to order suspension of a repeat infringer’s internet account for up to six months. This may be activated at a later stage by an Order in Council, a decision which would likely attract much public attention. Commerce
Minister Simon Power has stated that this element of the Act will not be brought into force unless the existing process proves to be ineffective.

Meanwhile, public opponents of the amendments have re-ignited a campaign to blackout their internet pages, a form of protest first publicised when section 92A of the current Act was introduced.

On the other side of the scale, the United States entertainment industry is pushing for the extension of copyright terms and re-examination of ISP liability for customer breach of copyright, while the Australian film industry is similarly pushing for ISP liability (Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23).

Regardless, the provisions of the New Zealand Copyright (Infringing File Sharing) Amendment Bill will come into effect for ordinary internet services on 1 September 2011, and 30 September 2013 for cellular mobile networks.

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