What New Zealand businesses need to know about our new copyright legislation
Saturday 19th November 2011
The Copyright (Infringing File Sharing) Amendment Act 2011, which came into effect on 1 September 2011, has already started to bear fruit and employers need to be aware that they could be affected. Internet Service Providers (ISPs) Telecom, Orcon, TelstraClear and confirmed this month that they had received their first notices, the majority of which related to alleged download of songs by Rihanna and Lady Gaga. All of the notices appear to be from the Recording Industry Association of New Zealand (Rianz). TelestraClear and Orcon received further notices on 9 November.
The new law requires that the recipient ISPs then serve notices on their account holders. After a third warning notice, right holders can seek damages of up to $15,000 from the account holder. It is possible some of these account holders could be businesses if it is their staff which are responsible for the downloads.
What is the Copyright (Infringing File Sharing) Amendment Act?
The legislation is aimed at combating copyright infringement over the internet through peer-to-peer file sharing services such as BitTorrent. File sharing is defined as a process whereby material is uploaded via or downloaded from the Internet, using an application or network that enables the simultaneous sharing of materials between several users which may, but need not, occur at the same time.
Therefore, downloading music in breach of copyright from websites which do not operate on a file sharing basis would not infringe the Act.
What do employers need to know?
Businesses should remember that under the provisions of the Act, it is the holder of the offending internet account who is liable – even though the account holder may not necessarily have engaged in illegal downloading. The liability is strict, the implication of which is that employers (as account holders) can be liable for the activities of their employees in breach of the Act.
While the Act does give the alleged infringer the right to challenge an infringement notice, the circumstances under which this can be done are rather limited. The alleged infringer would have to demonstrate that the party seeking damages does not in fact own copyright to the work in question; that the information recorded in the infringement notice is not correct; or that the notice was not issued in accordance with the procedure outlined in the Act.
The alleged infringer can only challenge a notice within 14 days of the date of the notice .
Employers should therefore take the “prevention is the best cure” approach by ensuring that their staff are aware of the implications of breaching the Act and by installing software which blocks access to peer-to-peer sharing websites.
For further details on the new law, see previous updates on the Baldwins website:
This article was written with assistance from Anna Parfjonova.