News
Introducing section 92A of the Copyright Act...again
Copyright infringement is in the headlines again this week. The jury in a high profile US copyright infringement trial has ordered a Boston University student to pay US$675,000 to four record companies for illegally downloading and sharing 30 songs on the internet. The decision comes just days before the deadline for submissions on New Zealand's proposed approach to internet copyright infringement.
Late last year the Copyright (New Technologies) Amendment Act 2008 sought to introduce a new section 92A to the Copyright Act 1994. Section 92A was a source of tension between internet users, copyright owners and internet service providers (ISPs) and as a result it did not come into force. The key concern was that section 92A placed an obligation on ISPs to police internet copyright infringement. The debate has been reignited with the release of a consultation document on 14 July 2009.
The consultation document was developed by the Ministry of Economic Development following a review of section 92A by a working group of intellectual property and internet law experts. It proposes the following process to deal with repeat internet copyright infringement:
1. Issue a first infringement notice and a cease and desist notice
A copyright owner that considers on reasonable grounds that there has been an online infringement of its works may send a first infringement notice to the relevant ISP. The notice must be in the prescribed form and contain information required by regulation in order to identify the internet user.
The ISP is required to forward this notice to the internet user, who will have 30 days to respond. The copyright owner is required to accept or reject the response and advise the user of its decision.
The first infringement notice will be valid for nine months, during which time the ISP is required to maintain records of the user's alleged infringements. If the infringement is repeated at any time during that nine month period, the copyright owner may send a cease and desist notice to the ISP. The process with respect to the cease and desist notice is the same as for the first infringement notice.
2. Obtain an order from the Copyright Tribunal
If, having issued a first infringement notice and a cease and desist notice, the copyright owner considers on reasonable grounds that the internet user has further infringed its copyright, the copyright owner may apply to the Copyright Tribunal for an order requiring the ISP to provide the contact details of the internet user.
3. Register an infringement complaint with the Copyright Tribunal
The copyright owner may then register an infringement complaint with the Copyright Tribunal. The internet user will be notified of the complaint and given an opportunity to respond. The internet user may refer the complaint to mediation. If the mediation is unsuccessful or the internet user does not respond to the complaint, the Copyright Tribunal will be convened. In addition to damages, injunctive relief and account of profits, the Copyright Tribunal may order the internet user to pay a fine or require the ISP to terminate the user's internet account.
Our sense of the prevailing opinion in the blogspace is that the Copyright Tribunal is not well equipped to deal with the likely volume of infringement complaints.
The section 92A consultation document is available at www.med.govt.nz/section92a. The deadline for submissions is 5pm this Friday.
For more information contact:
Dean Oppenhuis
Partner
