The New Zealand Parliament recently introduced the Copyright
(Infringing File Sharing) Amendment Bill, which amends the
Copyright Act, 1994, to provide new enforcement measures
against the unauthorized sharing of copyright material over the
Internet. The bill repeals the old Section 92A of the Copyright
Act, which was never brought into force. That section would
have required Internet service providers (ISPs) to adopt a policy
of terminating the Internet accounts of repeat infringers. The new
Section 92A will require ISPs to adopt a more nuanced graduated
response system that seeks to balance legal remedies for victims of
illegal file-sharing with effective consumer protections. It is
expected that the bill will come into force on October 1, 2010.
Under the current Copyright Act, rights holders who are
victims of file-sharing are required to seek a separate court order
to obtain the identity of each alleged infringer from the
infringers' ISPs. During consultations on the bill, the New
Zealand Parliament found that, under this system, the cost of
taking infringement proceedings in court was generally much higher
than a possible award of damages for the particular infringement.
This predicament acted as a barrier to effective copyright
enforcement. The bill amends these provisions by requiring ISPs to
implement a graduated-notice system for infringing subscribers
backed by effective remedies for rights holders against repeat
infringers. This speedier copyright enforcement system avoids
involvement of the court system except in the case of the most
The bill provides that ISPs must send infringement notices to
the alleged infringer, warning that file-sharing may infringe
copyright and that continued infringement may result in enforcement
action. The bill also provides time frames in which subsequent
notices cannot be sent, to give account holders reasonable time to
curb infringing activity.
The bill intends to deter the majority of infringers through a
first notice. A study in the UK recently found that users of
illegal file-sharing websites and software will usually cease their
infringing activity upon receiving a single notice. However, the
bill also requires ISPs to enact remedies for more effective
enforcement of copyright against repeat infringers.
If an individual subscriber has received three notices from the
same copyright holder, the ISP must notify the copyright holder who
may then either apply to the Copyright Tribunal for a compensation
award up to $15,000, or apply to the District Court for an order
requiring the ISP to suspend the subscriber's Internet account
for a period of up to six months.
The bill immunizes ISPs from liability for their
subscribers' infringing activities so long as they implement
the graduated-notice system described above.
McCarthy Tétrault Notes
The bill also includes a number of provisions intended to
balance these new remedies for rights holders with consumer
protections for Internet users. ISP subscribers must be able to
challenge any notice of infringement they receive and the ISP's
decision on the matter may be appealed to the Copyright Tribunal.
In addition, copyright holders may not be represented by a lawyer
at Tribunal hearings in order to make the hearings inexpensive and
accessible to ordinary consumers. The bill also provides a
restrictive definition of the term "Internet Service
Provider." The definition does not include universities,
libraries and businesses that provide Internet access to their
employees. Only telecommunication service providers will be
required to comply with the bill's record-keeping and notice
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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