Changes to the Copyright Act, aimed at deterring illegal
file-sharing online, have come back from a select committee.
The controversial Section 92A, drafted by the previous
Labour government, was sent back to the drawing board by the National
government after it was decided the original law was unfair.
The Copyright (Infringing File Sharing) Amendment Bill,
which replaces 92A, puts in place a three-notice regime to deter illegal file
The measures include ISPs sending warning notices to their
customers informing them they have infringed copyright, and extending the
jurisdiction of the Copyright Tribunal to provide a fast track, low cost
process to hear illegal file sharing claims.
The tribunal will be
able to award penalties of up to $15,000 based on damages sustained by the
The bill, as referred to the committee, included the power
for a District Court to suspend an internet account for up to six months, in
appropriate circumstances. The committee has recommended that this power be
included in the Copyright Act – as foreshadowed by the government – but not
brought into force unless the notice process and the remedies in the Copyright
Tribunal are ineffective.
This will enable the government to work with stakeholders to
monitor and review the situation and determine when a further deterrent may be
needed. It’s expected the issue will be reviewed in two years’ time, coinciding
with the five-year review of the digital copyright amendments that were passed
Another key recommendation is that the notice regime will
not apply to cellular mobile networks until August 2013.
“This position is likely to change in the near future as
technology advances and mobile broadband prices go down,” Commerce Minister
Simon Power said.
Other recommended changes being supported by the government
- Clarifying that representative organisations can use the new
measures on behalf of copyright owners (by aggregating instances of
infringement), which will make the system both easier to use for owners and
easier for ISPs to administer.
- Redrafting the definition of file sharing to narrow its
- Enabling the Copyright Tribunal (or the District Court, if
internet suspension is brought into force) to decline to make an order where it
would be manifestly unjust to the account holder.
legislation will discourage illegal file sharing and provide more effective
measures to help our creative industries enforce their copyright,” Power said.
Commenting on the changes, the Creative Freedom Foundation said it was “disappointed
to see that Internet Termination is still making an appearance, and there is an
alarming return to the Guilt Upon Accusation”.
CFF Director Bronwyn Holloway-Smith said, “Temporarily
disabling Internet Termination just delays the problem because the government
has no independent statistics about infringement in New Zealand. This means
that any decision to enable termination would have to be based on lobbying, and
it could be enabled in Cabinet any week in the future – without a vote in
“Rather than the presumption of innocence, there is a
presumption of guilt under section 122MA. This is exacerbated by the lack of
any sanction for false or malicious accusations, making the process ripe for
abuse,” Holloway-Smith added.
CFF, however, noted some positive improvements – notably the
decision to revert back to the current copyright law's allowances of artistic
"Until New Zealand artists enjoy the same parody and
satire protections that Australian artists do, lawmakers must be careful to
ensure that fundamental existing public rights to access and remix our culture
are not impinged,” Holloway-Smith said.