On the heels of iiNet decision New Zealand proposes "three strikes and you're out" regime for internet infringers

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 (Act).

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 six months.

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 Bill.

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 networks.

The introduction of the Bill may propel rights holders to lobby the Australian government for the introduction of a similar bill in Australia.

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