On the heels of iiNet decision New Zealand proposes "three
strikes and you're out" regime for internet
The Copyright (Infringing File Sharing) Amendment Bill (Bill)
was introduced in New Zealand on 23 February 2010, containing
proposed amendments to the New Zealand Copyright Act 1994
Currently, the Act requires copyright owners to seek a court
order to obtain the identity of the customer of an internet service
provider (ISP) who is accused of infringing copyright.
The Bill proposes to radically change this position by
establishing a scheme under which ISPs are obliged to give alleged
infringers up to three notices to stop infringing activity. This
obligation arises when a copyright owner provides the ISP with
evidence of the alleged infringement and makes a request for the
notices to be issued.
How the proposed infringement notice scheme will work
The first notice will include information educating the account
holder about copyright infringement. It will also inform the
account holder that any further evidence of infringement will be
logged by their ISP and that enforcement action may be taken if a
third notice is issued.
The second and third notices will list the alleged infringements
incurred by that account holder since the first notice and will
include a warning that the Copyright Tribunal (Tribunal) may award
compensation on the basis of this list.
Upon receiving notification from an ISP that an account holder
has received three notices, copyright owners will be entitled to
apply to the Tribunal for a compensation award of up to NZ$15,000.
Copyright owners will also be able to make an application to a
District Court for an order compelling the ISP to suspend the
account holder's access to the internet for a period of up to
This Bill provides an impetus for ISPs to issue the notices as
ISPs will be able to rely on a safe harbour (exclusion from
liability) for file sharing infringements occurring over their
networks, provided they comply with the obligations proposed under
The scheme intends to balance these new provisions by also
including a mechanism by which account holders can challenge
infringement allegations by copyright owners.
An Australian perspective
The introduction of the Bill is timely, given the decision
earlier this month by Justice Cowdroy in the iiNet case.
In his decision, His Honour pronounced that in Australia ISPs
are not obliged to police the infringing activities of their
account holders succinctly, by stating that "the law
recognises no positive obligation on any person to protect the
copyright of another".
However, as discussed above, the scheme proposed in the Bill
will impose such an obligation on ISPs in order for the ISP to be
excluded from liability for infringements occurring over their
The introduction of the Bill may propel rights holders to lobby
the Australian government for the introduction of a similar bill in
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