Repeat infringers in New Zealand: never mind the punishment, what about the policy?

Elena Szentivanyi (Principal, Henry Hughes) writes:

"You may recall the rather controversial proposed amendment to the NZ Copyright Act 1994 in the form of section 92A which read:

“s 92A - Internet service provider must have policy for terminating accounts of repeat infringers

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner”.

While sections 92B – E have come into force (dealing with other aspects of Internet service provider liability for copyright infringement), the entry into force of section 92A has been delayed on two occasions to allow for the formulation of a voluntary "ISP Copyright Code of Practice" (“the Code”) to provide guidance for Internet Service Providers (“ISPs”) and right-holders (“RH”) on how section 92A is the operate.

In the absence of agreement between ISPs and RHs the Minister of Commerce, who is responsible for IP legislation, has instructed Ministry of Economic Development officials, the Ministry responsible for the Intellectual Property Office, to undertake a review “to build on information gathered during ISP and RH negotiations on the Code, and to take account of industry and subscriber concerns”.

Following two meetings of a working group comprising “intellectual property and internet law experts” a policy document has now issued for public comment. The attached policy document sets out a proposed approach for dealing with allegations of repeat copyright infringement in the digital environment.

I think that the proposed policy is a positive development in many respects as it puts the burden more appropriately upon RHs rather than ISPs to provide reasonable evidence of copyright infringement, more clearly defines that burden, and also takes the power to disconnect a customer away from the ISP and gives it to an independent Tribunal.

However, there are still a number of matters to be dealt with, some of which are highlighted in the specific questions within the policy document.

It is to be remembered that the definition of “Internet Service Provider” already exists in the Copyright Act and is very broad (“Internet service provider means a person who does either or both of the following things: (a) offers the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing: (b) hosts material on websites or other electronic retrieval systems that can be accessed by a user”). This is perhaps broad enough to cover the internet connection an employer supplies to its employees.

Further the possibility of sanctions against RHs for repeated improper use of the notice procedure needs to be covered and also whether repeat infringement extends to infringement in works owned by different RHs.

The policy provides for mediation as an option and if that fails for referral of the dispute to the Copyright Tribunal (with an appeal to the High Court). The Tribunal is an administrative tribunal, comprises three members (two at least of which have many other professional commitments), it appears that the Tribunal has only issued 13 decisions since 1977 and is most used to dealing with disputes relating to licensing schemes rather than the issue of whether copyright subsist and has been infringed. While a RH can, in the alterative, apply to the court for determination of the infringement issue, it will be interesting to see how often RHs take their case to the Copyright Tribunal.

The original section 92A was the subject of much comment and speculation in the media – it will be interesting to see what public and industry response there is to the current proposal. The deadline for submissions is Friday 7 August 2009".

If you're thinking of responding, do please note the deadline (why are important deadlines so often in the middle of the holiday period -- or are there no holidays in New Zealand at that time?). And if you want to discuss this topic with Elena, who is definitely an enthusiast, you can email her here