The Act is a legislative response to changes in
technology which have made wholesale copying of digital media via
the Internet ubiquitous amongst certain sectors of New Zealand
Until now rights holders have been virtually powerless to stop
these breaches as copiers are only identifiable by a dynamic
IP1 address and only ISPs are able to match those IP
addresses to the name and address of an account holder.
Under the Act copyright owners are now able to send evidence of
breaches to an ISP. The Act provides safe harbour for an ISP which
follows certain procedures set out in the Act on receipt of that
evidence. If the ISP does not do so then it could, technically, be
found to be in breach of the copyright owners' rights along
with its customer. Hence it is expected most ISPs will follow the
procedures set out in the Act.
Under those procedures the ISP must send three types of
infringement2 notice to alleged infringers. Those
notices, and the order in which they are issued, are as
1.1. Detection notice: these notices are sent the first time an
ISP matches an account holder with an IP address at which an
infringement is alleged;
1.2. Warning notice: these notices are sent to account holders
matched to a second infringement at least 28 days after the sending
of a Detection notice but before the Detection notice expires (9
months after the date of the Detection notice); and
1.3. Enforcement notice: these notices are sent to account
holders matched to a third infringement at least 28 days after the
sending of a Warning notice but before the Warning notice expires
(9 months after the date of the Warning notice). Enforcement
notices apply for 35 days (known as the "quarantine
period") and the issue of an Enforcement notice entitles a
copyright owner to take enforcement action before the Copyright
Tribunal or the District Court.
The Copyright Tribunal has the power to order an account holder
to pay damages to the copyright owner for any infringements listed
in a Detection, Warning or Enforcement notice which it finds to be
valid - although the total amount is capped at $15,000. The
District Court has the power to suspend an account holder's
internet account for up to 6 months.
James & Wells Intellectual Property represents a number of
significant rights holders who are likely to utilise the procedures
under the Act including the Motion Picture Association of America
(MPAA), The New Zealand Federation Against
Copyright Theft (NZFACT) and the Recording
Industry Association of New Zealand (RIANZ). As
such we have particular expertise in this field and would be happy
to respond to any questions you have regarding the Act and its
This article has been written by
Ian Finch, a partner in the Auckland office. To contact Ian,
please email him on firstname.lastname@example.org or phone 09 914
1. Refers to the ownership of an intangible thing - the
innovative idea behind a new technology, product, process, design
or plant variety, and other intangibles such as trade secrets,
goodwill and reputation, and trade marks. Although intangible, the
law recognises intellectual property as a form of property which
can be sold, licensed, damaged or trespassed upon.
Intellectual property encompasses patents, designs, trade marks and
2. Refers to the commission of a prohibited act with
respect to a patented invention without permission from
the patentee. In New Zealand, the Deed of Letters
Patent confers on the patentee a monopoly to make,
use, vend or exercise the invention in New Zealand.
Performing any of these acts without the permission of the
patentee will amount to an infringement if the
patent is current and in force. Permission will typically
be granted in the form of a license. Remedies for infringement can
include an injunction to restrain further infringement, payment of
damages suffered by the patentee as a consequence of the
infringement or payment by the infringer of any profit he/she/it
made by virtue of the infringement, and legal costs.
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.
James and Wells is the 2010 New Zealand Law Awards winner of
the Intellectual Property Law Award for excellence in client
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