Section 92A revisited - three strikes and you're out

A new “three-notice” regime for dealing with online copyright infringement is seen by the Government as the key to a successful new section 92A of the Copyright Act 1994.

The section, originally due to have come into force in March 2009, was reviewed earlier in the year after concerns were raised over its effectiveness and operation. Following the review, on 16 December 2009, a Cabinet Paper was released which outlines the basis for a revamped section 92A.

The three key measures proposed in the Cabinet Paper are:

• a right holder will be able to request that Internet Service Providers (“ISPs”) issue notices to alleged infringers. Alleged infringers will then be given an opportunity to respond, by way of counter notice;
• if, after three notices, the infringement continues, the right holder may lodge a complaint with the Copyright Tribunal which will be able to award a penalty of up to NZ$15,000;
• where the continued infringement is serious, the right holder may apply to the court for relief, including suspension of the infringer’s account for up to six months.
  The “three-notice” regime can be broken down into distinct steps – each with a different purpose.

First notices will educate and warn alleged infringers that what they are doing is illegal. It is envisaged that the bulk of complaints will be resolved after the first notice. Second notices will effectively be “cease and desist” letters. Third notices will have an advisory role – they will inform the account holder that there have been three or more infringements.

If the infringement continues, the Copyright Tribunal will come into play. The Tribunal will be the adjudicative body that decides matters where three notices have been given. To take a complaint to the Tribunal, the loss to the right holder must be less than $15,000. Appeals to the High Court from decisions of the Tribunal will be available – but on questions of law only.

In a case where the infringement has been serious and where the “three-notice” regime is not appropriate, a right holder may initiate proceedings with the court without going to the Tribunal. Civil remedies available to a right holder will include suspension of an Internet account for up to six months. Although this is viewed as a significant deterrent to online infringement, it is a step back from the termination of Internet accounts provided for under an earlier version of section 92A

With the release of the Cabinet Paper, a new section 92A can now be drafted and introduced into Parliament. The new section 92A is expected to come into force in 2010.

Earlier discussion of section 92A can be viewed here and here.

December 2009.