The New Zealand Parliament recently introduced the Copyright (Infringing File Sharing) Amendment Bill, which amends the Copyright Act, 1994, to provide new enforcement measures against the unauthorized sharing of copyright material over the Internet. The bill repeals the old Section 92A of the Copyright Act, which was never brought into force. That section would have required Internet service providers (ISPs) to adopt a policy of terminating the Internet accounts of repeat infringers. The new Section 92A will require ISPs to adopt a more nuanced graduated response system that seeks to balance legal remedies for victims of illegal file-sharing with effective consumer protections. It is expected that the bill will come into force on October 1, 2010.
Under the current Copyright Act, rights holders who are victims of file-sharing are required to seek a separate court order to obtain the identity of each alleged infringer from the infringers' ISPs. During consultations on the bill, the New Zealand Parliament found that, under this system, the cost of taking infringement proceedings in court was generally much higher than a possible award of damages for the particular infringement. This predicament acted as a barrier to effective copyright enforcement. The bill amends these provisions by requiring ISPs to implement a graduated-notice system for infringing subscribers backed by effective remedies for rights holders against repeat infringers. This speedier copyright enforcement system avoids involvement of the court system except in the case of the most severe remedies.
The bill provides that ISPs must send infringement notices to the alleged infringer, warning that file-sharing may infringe copyright and that continued infringement may result in enforcement action. The bill also provides time frames in which subsequent notices cannot be sent, to give account holders reasonable time to curb infringing activity.
The bill intends to deter the majority of infringers through a first notice. A study in the UK recently found that users of illegal file-sharing websites and software will usually cease their infringing activity upon receiving a single notice. However, the bill also requires ISPs to enact remedies for more effective enforcement of copyright against repeat infringers.
If an individual subscriber has received three notices from the same copyright holder, the ISP must notify the copyright holder who may then either apply to the Copyright Tribunal for a compensation award up to $15,000, or apply to the District Court for an order requiring the ISP to suspend the subscriber's Internet account for a period of up to six months.
The bill immunizes ISPs from liability for their subscribers' infringing activities so long as they implement the graduated-notice system described above.
McCarthy Tétrault Notes
The bill also includes a number of provisions intended to balance these new remedies for rights holders with consumer protections for Internet users. ISP subscribers must be able to challenge any notice of infringement they receive and the ISP's decision on the matter may be appealed to the Copyright Tribunal. In addition, copyright holders may not be represented by a lawyer at Tribunal hearings in order to make the hearings inexpensive and accessible to ordinary consumers. The bill also provides a restrictive definition of the term "Internet Service Provider." The definition does not include universities, libraries and businesses that provide Internet access to their employees. Only telecommunication service providers will be required to comply with the bill's record-keeping and notice requirements.
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