Commerce Minister Simon Power today announced the Government favours a three-notice procedure to deal with illegal copying of material over computer networks.
Mr Power announced the release of a Cabinet paper outlining the basis of new legislation, which will be introduced to Parliament early next year.
The main points of the proposal are:
- Right holders will be able to request internet service providers (ISPs) give alleged infringers notice to stop infringing activity
- The first notice will inform the account holder that illegal infringing activity has occurred. Two further notices may be sent
- Should infringing occur after three notices, the right holder may seek a penalty of up to $15,000 at the Copyright Tribunal
- Where serious and continued breaches occur, right holder will be able to go to court to seek a range of remedies, including the suspension of accounts for up to six months
- Account holders will be able to issue counter notices, and can request a hearing if they feel they should not be penalised
Mr Power said the three-notice procedure was the key to the process.
“The procedure will both educate and warn file-sharers that unauthorised sharing of copyright works is illegal and, in turn, stop a large proportion of illegal file-sharing.”
The public will be able to make submissions at the select committee stage.
It is expected the legislation will become law next year.
A copy of the cabinet paper is available here.
Questions and answers on the review of Section 92A of the Copyright Act 1994
Why are we reviewing section 92A of the Copyright Act?
Peer-to-Peer file sharing involves the sharing of music,
video, and game files over computer networks such as the internet. Often
this sort of sharing is without authorisation from the copyright owner,
breaches their copyright, and denies them revenue they might otherwise earn if
they sold these creative works.
Current enforcement measures under the Copyright Act are not
considered effective. The original version of section 92A was intended to
provide enforcement measures for copyright owners to stop this problem but was
met with a lot of public concern.
The revised section 92A will address these issues and
provide an effective and credible process for copyright owners to enforce their
copyright against illegal peer-to-peer file sharers.
What does the proposal say?
Section 92A will now provide an enforcement process that
involves a three-notice regime and the possibility of a penalty awarded by the
Copyright Tribunal.
Right holders who can provide evidence of an infringement
will be able to request Internet Service Providers (ISPs) give alleged
infringers notice to stop infringing activity.
Why is it up to ISPs to issue notices rather than right
holders?
The responsibility for issuing notices is with ISPs because
only they have access to account holders’ personal information. Accordingly,
only they can match evidence of peer-to-peer infringement with that account
holder.
Why is there a new ISP definition?
A new definition of ISP will be added into the Copyright
Act, specifically for section 92A, because public submissions demonstrated a
concern that some organisations that aren’t traditional ISPs, including
businesses and universities, could be required to send notices to infringers
under the current definition.
Will the new regulations allow the suspension of internet
accounts?
Yes, but right holders must seek suspension of an internet
account through the courts and it will only be ordered under specific and
appropriate circumstances. It is expected this remedy will be used only
for serious cases of infringement. Suspension will be for only up to six
months.
Why is this remedy up to the courts?
The decision to suspend an internet account will be up to
the courts because only the courts can adequately consider both parties
arguments and take into account natural justice issues.
How much will it cost copyright owners to pursue a claim?
The fees have not been set yet and will require further
consultation with stakeholders. These will be included in the regulations that
will go with the new legislation. However, it is expected that right holders
will pay a fee per notice to ensure ISPs recoup the costs of administering the
system. Right holders will also pay a fee to take a claim to the
Copyright Tribunal. At this stage the application fee will be similar to
the fee charged by the Disputes Tribunal which is between $30 and $100.
Account holders intending to defend a claim before the
tribunal will not be charged a fee.
Will this new process cost the taxpayer and if so, how much?
Yes, the Crown will need to cover the costs of setting up
the Copyright Tribunal for its extended jurisdiction. Some of the cost will be
recouped by the fee necessary to take a claim to the tribunal. The cost will
depend on the number of cases taken to the tribunal which should decrease as
the public become familiar with the new notice regime.
Work around this is
ongoing. This seems to have taken a long time. Has it?
No. Officials and the Government have been moving this
process along as quickly as possible. However, there was a large volume of
submissions received and they all needed to be addressed. Also, section 92A
affects several ministries so adequate inter-departmental consultation was
important. It has been a complex issue and the focus has been to
provide the best possible solution that is workable and effective.
How does the Anti-Counterfeiting Trade Agreement relate to
the review of section 92A?
It doesn’t. The review of section 92A is on a separate track
from the Anti-Counterfeiting Trade Agreement discussions.
What is the process from here?
The new provisions of the Copyright Act can now be drafted.
It will be introduced into the House and following its first reading it will be
referred to select committee. It is at this stage the public will have another
opportunity to make further submissions on the legislation. The Ministry of
Economic Development will continue to consult with stakeholders on certain
parts of the regulations that confirm how the system will work and the related
fees.
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