In 2008, the New Zealand Government proposed new legislation to deal with illicit file-sharing. Section92A was the subject of widespread protests which eventually caused the Government to scrap their plans and go back to the the drawing board in order to remove the “guilty upon accusation” elements.
Today, Commerce Minister Simon Power will introduce The Copyright (Infringing File Sharing) Amendment Bill which will repeal Section 92A and replace it with a modified regime intended to reduce illegal file sharing.
“The major feature is the three-notice process, which educates the public about illegal file sharing and provides effective methods for copyright owners to enforce their copyright,” says Power. “It ensures that file sharers are given adequate warnings that unauthorised sharing of copyright works is illegal.”
Despite the more-gently named “three notice” regime (versus the more commonly used “3 strikes” term) the effects are the same. The bill will enable copyright owners to claim damages and make requests for the Internet subscriptions of infringers to be suspended.
That said, the element most criticized in Section92A was the lack of a right to reply to an accusation, and that appears to have been addressed. The Bill will extend the jurisdiction of the country’s Copyright Tribunal, which will hear both sides of the argument and will be empowered to rule on cases of alleged infringement.
“It’s important that account holders are given a reasonable time to stop infringing before enforcement takes place. The bill prescribes timeframes so account holders have the opportunity to address illegal file sharing activity occurring on their internet connection before enforcement action is taken,” says Mr Power for the Government, adding, “They will also have the chance to challenge notices and may request hearings at the Copyright Tribunal to contest infringement claims.
Yesterday it was revealed that Peter Dengate-Thrush, a lawyer specializing in Internet and IP law, has been appointed to the three-person Copyright Tribunal.
Dengate-Thrush, who was legal advisor to InternetNZ for 3 years and is the chairman of Internet policy-making body ICANN, will serve on the Tribunal for five years.
“I straddle both camps, in that I have got a history of involvement in developing internet institutions, practices and rules and also my daily practice is as an intellectual property barrister,” he said in a recent interview.
“I make my living out of advising trademark owners and copyright owners and fully appreciate the consequences of infringements. These are bad things for the economy, communities, inventors and creators of good ideas.”
The Tribunal will be able to fine persistent infringers up to $15,000 ($10,539 USD) with the exact amount linked to damages alleged to have been suffered by the copyright owners. It will also be able to order the suspension of Internet accounts for six months.
“[There] will come a time when disconnecting them [repeat infringers] for a period is the right thing,” added Dengate-Thrush.
While welcoming most of the amendments, InternetNZ, the group which oversees the Internet in New Zealand, says the account suspension clause needs to go.
“The only major flaw remaining in the legislation is that its provision for the suspension of people’s Internet accounts. Internet users would simply start a new account at another ISP,” says Policy Director Jordan Carter.
“While suspension would require an order of the District Court, it is still unworkable and unnecessary. InternetNZ will argue strongly that suspension be deleted by the Select Committee.”