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ONLINE COPYRIGHT INFRINGEMENT – A PROPOSED REVAMP OF SECTION 92A

In Uncategorized on August 11, 2009 at 11:52 pm

A proposed amendment to the NZ Copyright Act 1994 to deal with the issue of copyright infringement by downloading from the Internet was first proposed last year.  There was significant public out cry and complaint about the draconian aspects of the proposed provision that the Government did a U-turn and did not enact that part of the Bill.  In particular, questions were raised over the effectiveness and enforceability of the new provisions. Of particular concern were the obligations of Internet Service Providers (“ISPs”) in disconnecting “repeat infringers” of copyright and in enforcing the law.

Following a review by a team of “experts” and a re-drafting of the contentious section 92A, the Government released a discussion paper outlining a new scheme for addressing online copyright infringement.

The discussion paper sets out a new three step process for dealing with online copyright infringement:

  • Phase One – Where a rights holder believes there to be online copyright infringement, a complaint may be lodged with the ISP. The ISP will then forward the complaint to the subscriber. If there is further infringement by that subscriber, the rights holder may send a cease and desist letter. The subscriber will have an opportunity to respond.
  • Phase Two – This applies where the rights holder believes there to be repeat instances of online copyright infringement after a cease and desist letter has been sent, and the subscriber has been given an opportunity to respond. Here, the rights holder may apply to the Copyright Tribunal to obtain from the ISP the name and contact details of the subscriber in question.
  • Phase Three – The rights holder may then file a complaint with the Copyright Tribunal. The subscriber will have an opportunity to respond and may elect mediation. Unless there is an agreement to the contrary, the Copyright Tribunal will be convened to determine the matter. Relief granted may include damages, injunctions, account of profits, fines and termination of the subscriber’s account by the ISP.

The current proposal appears to present a more acceptable solution.  It lessens the role and burden of ISPs in dealing with online copyright infringement, while at the same time increasing the role of the seldom used Copyright Tribunal.  The deadline for public submissions has just past so it will be interesting to see what the response has been.  However, I note that the media has not been busy stirring up public opinion this time around!

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  1. […] The driving force behind this appears to be ACTA which includes a provision on Intellectual Property Rights Enforcement in the Digital Environment, and the proposed law has been very controversial in NZ with the implementation of the law being delayed on more than one occasion. A quick summary of the proposals to amend the Copyright Act can be seen here. […]

  2. […] and in New Zealand’s case the proposed law has been delayed twice and has been the subject of a review by a team of experts to set out the process for the Internet Service Providers […]

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