New Zealand: The controversial Copyright (Infringing File Sharing Amendment) Act and Regulations come into force on 1 Sept 2011

Last Updated: 16 August 2011
Article by Ian Finch

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 society.

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 follows:

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 application.

This article has been written by Ian Finch, a partner in the Auckland office. To contact Ian, please email him on ianf@jaws.co.nz or phone 09 914 6740

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 copyright.

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 service.

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