Copyright (Infringing File Sharing) Amendment Bill introduced to Parliament

The Government has been attempting to put into place an effective and credible regime for enforcement of copyright in the digital environment i.e. to prevent illegal file sharing.
In New Zealand, and elsewhere, such laws have been found to be controversial 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 (“ISPs”).

The process for dealing with repeat infringers has now been specified in the Copyright (Infringing File Sharing) Amendment Bill and will be enacted as section 92A of the Copyright Act 1994.

Under the re-written section 92A, an internet account holder who is allegedly infringing copyright via file sharing will receive up to three notices from their ISP before a copyright owner may seek a compensation award at the Copyright Tribunal, or suspension of an internet account for up to six months in the District Court. The amount of an award may be up to $15,000.

The Bill will proceed to the Select Committee in the coming months and it is expected that it could be law by October 2010.

Specifically, the Bill repeals Section 92A of the Copyright Act, re-defines “ISP” to exclude universities, libraries, and businesses that provide Internet access to their members or employees but are not in the nature of a traditional ISP, and sets up a three-notice system to deter illegal file sharing:

Under the proposed regime, the following process is suggested to deal with illegal file sharing.
 Copyright owners will contact the allegedly infringing account holder through the ISP to report misuse of their copyright works.
 Internet users caught illegally downloading copyright material will be given up to three infringement notices – a detection, a warning and an enforcement notice:
o A detection notice will inform the user that they have downloaded copyright material and that their actions are illegal.
o A warning notice will be sent to a user if they infringe copyright again (and they have already received a detection notice).
o An enforcement notice will be sent to a user if they infringe copyright again (and they have already received a warning notice).
 After issuing an enforcement notice, the copyright owner can seek reparation costs of up to $15,000 through the Copyright Tribunal.
 Internet users who continue to download copyright material may have their internet account suspended by order of the District Court for up to six months.
 Account holders will have the right to challenge any notice, make submissions to the Copyright Tribunal refuting the claims, and request a hearing if they disagree with the claim that they have infringed copyright.

The Bill prescribes timeframes to give account holders an opportunity to address illegal file sharing activity occurring on their internet connection before enforcement action is taken.

ACTA update:

In other digital environment issues, the Minister of Commerce, Hon Simon Power, has announced a further round of public consultations on the content of the proposed Anti-Counterfeiting Trade Agreement (ACTA). The press release advises that the focus of this round of public consultations is the inclusion in ACTA of possible measures to enforce intellectual property rights in the digital environment (“digital enforcement”).

In the question and answer part of the press release relating to the new section 92A the Ministry of Commerce makes the following comment regarding the interplay between section 92A and ACTA: “How does ACTA relate to the review of section 92A? It doesn’t. The review of section 92A is on a separate track from the ACTA discussions”.

The ACTA digital enforcement provisions appear to cover the matters already covered by the proposed section 92A in terms of providing safe harbours for ISPs and co-operation between copyright owners and ISPs, However, it does go further and covers technological protection measures (TPMs) and Copyright management information (or rights management information).

To facilitate the preparation of submissions on the ACTA digital enforcement provisions the Ministry has published a discussion paper.

Submissions should be sent to trademarks@med.govt.nz by Wednesday, 31 March 2010.