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The Copyright (Infringing File Sharing) Amendment Act

By Mike Worsnop - 31 Aug 2011 - 3 comments

In November last year we reported that The Copyright (Infringing File Sharing) Amendment Bill was at Select Committee stage. That Bill was passed into law in April and comes into force on 1 September 2011.

Three Strikes procedure

The new 'three strikes' notice procedure set out in the Act will deal with the infringement of copyright through file sharing:

The key facts

Illegal activity

A copyright owner will now be able to notify their Internet Protocol Address Provider or IPAP, (i.e. their Internet service provider (ISP) such as Telecom or Vodafone) that they have detected that someone has downloaded material (such as music, movies, online books etc.) from their site, infringing their copyright in the site, without paying for it. The ISP will then be able to match the alleged infringement to an Internet Protocol address and the relevant ISP account holder.

First Strike

Once the account holder has been identified, the copyright owner can request the ISP to send a Detection Notice to the alleged infringer that they have detected that the account holder has made an unauthorised copy of the copyright owner's work.

Second Strike

If further infringement is detected the copyright owner can request that the ISP send a Warning Notice to the account holder. This notice can be sent at any time between 28 days and nine months after the date of the Detection Notice.

Third Strike

If the infringement continues an Enforcement Notice can be sent to the account holder between 28 days and nine months after the date of the Warning Notice.

The ISP will charge $25 plus GST for each notice issued, and there is a procedure whereby the alleged infringer can challenge the notices.

Damages

There is a 35 day quarantine period after the "third strike" and once an Enforcement Notice has been issued, a copyright owner can take a claim for damages against the account holder to the Copyright Tribunal. The Copyright Tribunal must make an award for damages if evidence of infringement is found. It has the power to impose a maximum penalty of $15,000.

Next steps

If you need advice as to your compliance obligations as a business or employer under the new procedure, or on how to deal with infringement notices or enforcing your rights as a copyright owner, please contact us.

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3 comments

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Do you think this negates the legal presumption that someone is innocent until proven guilty? I may have my facts wrong but it seems like you have to prove that you didn't download the alleged item rather than them having to prove you did. Thoughts?

Garthreply

Notices sent to account holders must include evidence of the alleged infringement i.e. what copyright work or works that are alleged to be infringed, what file sharing network that is alleged to be used, and time and date of the alleged infringement.

Once a notice has been received and when the Copyright Tribunal process has been commenced, the account holder can respond and challenge the notice. The onus then appears to be on the rights holder to prove the infringement has occurred. From our reading of the legislation it does appear that if an account holder does not challenge the notice, the presumption that the account holder has infringed copyright does remain.

Emma Hunterreply

Thanks for the response Emma. That does seem quite contrary to how law works (as I understand it). I wonder if the law extends to streaming services like youtube? There's a ton of copyrighted material on youtube that people can easily access. This whole thing seems ill considered.