Thursday, June 2, 2011

Guest Post: New Zealand makes way for new Copyright Act in September

Thanks to Simon Fogarty for this article.

The Copyright (Infringing File Sharing) Amendment Act 2011 comes into force on 1 September 2011. This controversial legislation was designed to give copyright rights holders a fast and cheap method to stop unauthorised file sharing over the internet.

The Act creates a procedure for a rights holder to object to unlawful file sharing.  A rights holder must:

  • establish that a party has made an unauthorised copy of a copyright work; and
  • identify the computer’s internet address (IP address) that the party downloaded the file to.

The rights holder can then ask the internet service provider (ISP) responsible for the IP address to send an infringement notice to the account holder.

Infringement notices come in three forms: detection, warning, and enforcement notices. Put simply, if a person infringes copyright then, on a request from the rights holder, the ISP must send the account holder a detection notice. If the same person infringes the same rights holder’s copyright again, then, on request, the ISP must send a warning notice to the account holder. A third infringement of the same rights holder’s copyright will lead to the final notice, an infringement notice, being sent to the account holder.

After a rights holder issues an enforcement notice it can apply to the Copyright Tribunal for an award of damages against the account holder of up to $15,000. The Copyright Tribunal must make an award of damages against the account holder if it finds there is infringement. The only exception to this rule is where it would be manifestly unjust to make an award against the account holder.

The most contentious part of the legislation is a provision that will allow a rights holder to apply to the District Court for an order to suspend the account holder’s internet account. However, this provision is not coming into force on 1 September. Instead, the system will be reviewed after two years to determine if the damages awards are acting as a sufficient penalty. If the awards are not deterring infringements, then the provision allowing the District Court to suspend the account will come into force.

ISPs that allocate IP addresses, now face the burden of putting systems in place before 1 September so that they can comply with their obligations under the Act. This will come at a significant cost, which the ISPs will have to bear. However, the rights holders will be required to pay a fee for every infringement notice that they ask an ISP to send. The fees are yet to be decided.

Critics of the system say that we do not need it and that it will not be effective, especially against serious pirates. Regardless of the validity of those criticisms the legislation will come into force on 1 September 2011.

In May, the Ministry of Economic Development (MED) asked for submissions on the proposed regulations. The deadline for filing submissions has passed. MED must now draft the regulations. Once that is done, it will be a matter of waiting to see whether the system is effective and helps to curb online piracy.

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