Yesterday, 1 September 2011, the Copyright (Infringing File Sharing) Amendment Act 2011 (the “Amendment Act”) came into force; albeit to a mixed reception.
As previously discussed, the Copyright (Infringing File Sharing) Amendment Bill was introduced in February 2010 to provide a more effective means for copyright owners to enforce their rights against people involved in unauthorised sharing of copyright material via the Internet.
The basic framework of the Amendment Act’s changes and its key points can be summarised as follows:
- The Amendment Act covers file sharing that infringes copyright. “File sharing” occurs where material is uploaded or downloaded from the Internet using an application or network that enables the simultaneous sharing of material between multiple users.
- The account holder i.e. the owner of the account with the Internet Service Provider (“ISP”) is liable, notwithstanding whether that person actually downloaded/uploaded the file.
- Copyright owners will detect infringement of their works and notify the relevant ISP. The ISP matches the IP address upon which the alleged infringement occurred, checks compliance with the law and sends the account holder an infringement notice.
- If an account holder receives three notices (Detection notice, Warning notice and Enforcement notice) per rights owner, the rights owner can apply to the Copyright Tribunal for a penalty of up to $15,000.
- Time periods are prescribed in relation to the notices.
- An account holder is able to challenge a notice.
- An infringement is presumed to be in breach of the right holders’ copyright where a notice is issued unless it is challenged.
Whether this framework will be effective in combating “file sharing” has been highly debated. Many say that alternative solutions such as those which offer material online for a reasonable monthly fee would solve the problem of people downloading copyright material. This relies on the theory that if it is easy to pay, people will.
In comparison to the legal framework which existed before 1 September, the ISP is now under a much firmer obligation to comply with notices from rights holders in relation to file sharing. Section 92B – E (A was never enforced) of the Act, which were enacted in 2008 to cater for new technologies, generally provide that an ISP is not liable for hosting infringing material if it was not made aware of the infringement. Where a copyright owner notifies the ISP of the infringing material, the ISP, to avoid liability, should delete the material or disable access. These sections have not been repealed and apply to other instances of copyright infringement.
There are several aspects of the Amendment Act which may pose potential problems. In particular, the Amendment Act relies on the rights holder to detect copyright infringement. This requires surveillance and investigative services which come at a cost and are not always practicable. Further, as it is the account holder who is liable, organisations that allow multiple users access to their account may have some exposure.