Copyright (Infringing File Sharing) Amendment Act 2011

The Copyright (Infringing File Sharing) Amendment Act (“the Amendment Act”) was first introduced into Parliament early in 2010. Its purpose was to amend the Copyright Act 1994 to provide for new enforcement measures for copyright infringement via the internet, namely through illegal file sharing. It was enacted in somewhat controversial circumstances under urgency in April 2011, and the new enforcement regime is set to begin in 1 September 2011.

The Amendment Act introduces a three-stage notification regime. At the behest of copyright owners, any Internet Protocol Address Provider (IPAP) – formerly referred to as ISPs (Internet Service Providers), but changed as a result of the Select Committee process – must send a detection notice to one of its users if it knows that they have been engaging in illegal file sharing. If the user fails to cease the infringing behaviour, then the IPAP must send them second and third notices, called warning and enforcement notices, respectively. If the behaviour has not stopped after the third notice, copyright owners can apply for a resolution from the Copyright Tribunal, which is entitled to award damages of up to $15,000. To facilitate the notification regime, IPAPs are required to hold all information about their clients’ internet use for forty days, and hold any evidence of copyright infringement and action taken as a result for twelve months.

The Amendment Act repeals the Copyright (New Technologies) Amendment Act 2008, which, while enacted, had not yet come into force. The Copyright (New Technologies) Amendment Act would have required ISPs to terminate a repeat copyright infringer’s account.

The original intention of the Bill was to include a provision that would allow the District Court to suspend internet accounts for up to six months for repeated copyright infringement. However, following public outcry, the government chose to include the provision, but to leave it inoperative, unless the notice regime and Copyright Tribunal’s remedies prove to be ineffective. The provision only requires an Order in Council to become operative.

In July 2011, the government released a Cabinet paper, which, among other things, proposed regulations that would require copyright holders to pay a $25 fee to IPAPs for processing an allegation of copyright infringement, and the information that copyright holders need to provide to IPAPs before an investigation can begin. The government hopes to have the regulations in place by 1 September 2011.

See our previous articles on the amendment here and here.

July 2011.