Introduction The issue of how New Zealand will deal with unauthorized sharing of copyright material via the internet has taken another interesting turn. Current enforcement measures under the Copyright Act 1994 are considered ineffective. Section 92A of the Act was intended to provide a way to address this problem by forcing ISPs to have a policy providing for account termination, but was met with a lot of public concern. Readers may recall that at the time of our last article of 15 July 2009 Government were considering amending the section. On Tuesday, Minister of Commerce Simon Power introduced the Copyright (Infringing File Sharing) Bill (the
Bill) to Parliament which if passed will repeal s92A in favour of a new set of enforcement measures.
Below we outline the proposed enforcement process under the Bill and discuss the way it deals with two of the major concerns raised by the public regarding s92A.
Enforcement process under the Bill 1. Notice procedure:
This is the focus of enforcement under the Bill and is intended to stop infringement through public education and deterrence. A first notice (a detection notice) will include educational information and will inform the account holder that any further infringement activity will be logged by their ISP. The second and third notices (the warning notice and the enforcement notice) will contain a list of the alleged infringements and inform the account holder that the copyright holder may take the matter further.
The Bill prescribes a timing regime for the issue of notices giving the account holder time to remedy the infringement occurring on his account, and allows the account holder to dispute the notice.
A potential problem with this procedure is that it relies on the rights holder detecting copyright infringement in the first instance, which may not always be practicable or possible.
2. Enforcement:
If an account holder receives three notices, the copyright owner may apply to the Copyright Tribunal which will have the extended power to award compensation of up to $15k against the account holder. The copyright owner may also apply to the District Court for an order requiring the ISP suspend the account holders internet access for up to 6 months.
Account termination as a remedy
The remedy of account termination still exists in the Bill. However, it has been watered down somewhat by (a) not obliging ISP’s to have a termination policy (b) introducing the notice regime discussed above before termination can take place (c) requiring termination to be dealt with by the District Court. Whether these changes are enough to assuage public concern remains to be seen, but as the Bill is drafted there is nothing stopping an account holder from switching to a new ISP after their account has been terminated.
Internet Service Providers
One concern with s92A was that it included within its definition of “internet service provider” places like universities and libraries and subjected those places to the enforcement regime. The Bill deals with this issue by excluding those places from the infringing file sharing regime while granting them safe harbor if they act as a mere conduit for infringement.
The onus will be on those traditional ISPs falling within the definition to implement the notice regime which will likely result in costs being passed down to account holders.
Once the Bill has been read for the first time it will go to Select Committee at which stage the public can comment further. The Bill is expected to become law on 1 October 2010.