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New Zealand: Law Targeting Illegal Online File-Sharing Passed

(Apr. 18, 2011) On April 14, 2011, the New Zealand parliament passed the Copyright (Infringing File Sharing) Amendment Bill. (Press Release, Hon. Simon Power, New Regime for Section 92a Copyright Infringements (Apr. 14, 2011) [Press Release 1]; see also Copyright (Infringing File Sharing) Amendment Bill, New Zealand Legislation website (last visited Apr. 14, 2011).)

The bill establishes a new three-notice regime that seeks to deter illegal online file-sharing, replacing the previous approach that was set out by section 92A of the Copyright Act 1994. Section 92A, which was enacted in 2008 but never brought into force, would have required internet service providers (ISPs) to have, and reasonably implement, a policy for terminating the accounts of customers who repeatedly downloaded pirated material. (Press Release, Hon. Simon Power, Government to Amend Section 92A (Mar. 23, 2009); Press Release, Hon. Simon Power, Section 92A Bill Introduced to Parliament Today (Feb. 23, 2010); see also Press Release, Hon. Judith Tizard, Copyright (New Technologies) Amendment Comes into Force (Oct. 3, 2008).)

Under the new regime:

· Copyright owners will be able to notify ISPs that a customer is downloading material through file-sharing. ISPs would then send warning notices to customers informing them that they may have infringed copyright.

· After three warnings, the copyright owner will be able to take a claim to the Copyright Tribunal. The bill extends the jurisdiction of the Copyright Tribunal, in order to provide a low-cost process to hear illegal file-sharing claims.

· The Copyright Tribunal will be able to make awards of up to NZ$15,000 (about US$12,000) to copyright holders based on the damage sustained. (Martin Kay & Andrew Vance, Controversial Internet File-Sharing Law Passed, STUFF.CO.NZ (Apr. 14, 2011); Press Release 1, supra.)

This regime will come into force from September 1, 2011, although it will not apply to cellular mobile networks until October 2013. (Press Release 1, supra.) In addition, an agreement was reached between the government and the Labour Party to delay the coming into force of a further provision that would allow the Copyright Tribunal to refer serious cases to the district court, which would have the power to order that an internet account be suspended for up to six months. (Stephen Bell, File-Sharing Bill Passed into Law, COMPUTERWORLD (Apr. 14, 2011).) This provision will only come into force if the government determines that the notice process and Copyright Tribunal remedies have been ineffective in terms of reducing the extent of illegal downloading. (Press Release 1, supra.)

Opponents of the law argued that it would mean that internet users could have their accounts suspended without sufficient proof of an offense and that people could be unfairly punished where downloading was done without their knowledge. (Paul Harper, Controversial Internet Piracy Bill Becomes Law, NZ HERALD (Apr. 14, 2011); Adam Bennett, Controversial File-Sharing Law to Pass Today, NZ HERALD (Apr. 14, 2011).)

The Minister of Commerce, Hon. Simon Power, said that “[o]nline copyright infringement has been damaging for the creative industry, which has experienced significant declines in revenue as file sharing has become more prevalent. This legislation will discourage illegal file sharing and provide more effective measures to help our creative industries enforce their copyright.” (Press Release 1, supra.)