New proposal on internet copyright infringement

The struggle between rights holders and users of copyright works in the digital environment took another interesting turn yesterday when Minister of Commerce Simon Power announced a policy proposal aimed at reworking section 92A of the Copyright Act 1994.

Under the proposal there would no longer be a requirement for ISP’s to have an account termination policy for repeat copyright infringers. The jurisdiction of the Copyright Tribunal would be extended beyond copyright licensing disputes to include repeat copyright infringement under s92A as part of a three phase process outlined below:

1. Notice Procedure: Where a rights holder considers on reasonable grounds there has been copyright infringement, the rights holder sends a “first infringement notice” to the ISP which will then be forwarded to the subscriber (the internet account holder). If there is further copyright infringement then the rights holder may send a “cease and desist notice” via the ISP. The subscriber would have the opportunity to respond to either notice.
2. Copyright Tribunal Order: If a subscriber has had an opportunity to respond to a “cease and desist notice” (i.e. phase 1 has been completed) and the rights holder considers on reasonable grounds there has been further infringement, a rights holder may apply to the Copyright Tribunal to obtain an order requiring the ISP provide the name and contact details of the subscriber.
3. Copyright Tribunal: Phase 1 must be completed before phase 3 is available. A rights holder may register the complaint with the Copyright Tribunal. The subscriber is issued with a “complaint notice” and has the option to mediate; if this is not taken then the Copyright Tribunal is convened. There are a number of types of relief available including damages, injunction, account of profits, fines, or an order requiring the ISP to terminate the subscribers internet account. Any appeal would be to the High Court.

We consider the procedure has incorporated some of the concerns raised by rights holders in the last round of discussions.  However, there remain a number of potential issues including whether termination of an account is an appropriate remedy.  The Ministry invites comment on the specific questions raised in the proposal and the tribunal model of dispute resolution generally before 5pm Friday 7 August.  A full copy of the proposal is available here.