The Copyright (Infringing File Sharing) Amendment Bill was reported by the Commerce Select Committee on 3 November 2010.
The Bill seeks to amend Part 6 of the Copyright Act 1994 (Act) to provide more effective means for copyright owners to enforce their rights against unauthorised sharing of copyright material via the Internet. It aims to provide copyright owners with a fast-track alternative to the existing remedies under the Act.
Changes include the repeal of section 92A of the Act, changes to the definitions of ISP and file sharing, an exclusion for mobile networks, and a new section relating to the evidence required by each party at a Copyright Tribunal hearing.
The latest version of the Bill replaces the definition of Internet Service Provider for these provisions with "Internet Protocol Address Provider" or IPAP. An IPAP means a person that, other than as an incidental feature of its main business, operates a business that offers transmission and routing, provides connections between users, allocates IP addresses and charges for its services.
There was concern that the previous definition of ISP encompassed businesses such as commercial businesses, libraries, universities and hosting sites, and placed overly onerous obligations on them. The effect of this altered definition is to exclude universities, libraries, airport terminals and businesses that provide access to the internet, but are not considered traditional ISPs.
One reason for this change is that libraries and universities cannot always easily monitor or prevent infringement. To try to regulate this now would require inefficient and intrusive steps, such as snooping on emails and preventing access to certain websites.
Libraries, universities and business which are not IPAPs will be classified as "account holders" and subject to the three strikes regime.
The definition of "file sharing" has also been altered. The new definition only includes material that is uploaded or downloaded from the internet via an application or network that enables simultaneous sharing between multiple users. In other words, this means that only traditional peer-to-peer file sharing will be covered. Other means of copyright infringement, such as streaming and online file servers will not be included.
The amended Bill introduces section 122PB which specifically excludes cellular mobile networks from being covered under the new legislation until 1 August 2013. The reasoning behind this, as stated by the Select Committee, is that the current speed and cost of mobile downloading acts as an existing deterrent to copyright infringement via this medium. Vikram Kumar, CEO of InternetNZ, believes that copyright infringement via cellular phone is currently estimated to amount to only 3% of all infringing. However the Bill fails to recognise that cellular technology is developing incredibly quickly. By the time 2013 arrives not only will copyright infringement be possible by this medium, it could also have become established as a regular practice by many users.
Removal of Section 92A
The Bill repeals section 92A of the Act, which was enacted by section 53 of the Copyright (New Technologies) Amendment Act 2008 but not brought into force. Section 92A had provided an obligation for ISPs to implement a policy by which account holders internet access could be suspended for repeat offending, but had been criticised by some as overly draconian.
Procedure and Suspension
The Bill provides that, if a rights owner provides an IPAP with information that identifies an IP address where infringement is alleged to have occurred the IPAP must match the IP address with the account holder and issue the appropriate infringement notice no later than 7 days after receiving the information. The IPAP must issue three kinds of notices in the correct order; a detection notice, a warning notice and an enforcement notice. After the enforcement notice has been issued a rights holder can take the action to the Copyright Tribunal.
Section 122O allows the District Court to order an IPAP to suspend an account for up to six months if the account holder continues to infringe copyright after receiving an enforcement notice. It is currently intended that this part of the Bill is retained in the final legislation, but not brought into force. If the Minister decides that the other provisions alone are not proving to be effective, the Minister will have the ability to activate this section by an Order in Council.
One concern is that infringers would be suspended from one IPAP, not all IPAPs. This means that an infringer could potentially have accounts with two or more different IPAPs and effectively swap between the two as each account gets suspended, using this to never actually be suspended from the internet and continue to infringe.
For account holders such as libraries, if the power to suspend internet access is brought into force, section 122O(3)(d) contains a discretionary provision that allows the District Court to consider whether it would be manifestly unjust to suspend the account holder's account. The Select Committee states that the onus should be on all account holders to take measures to ensure that infringing file sharing does not occur on their accounts, but that s122O(3)(d) has been inserted "to avoid instances of injustice".
A new section 122MA has been inserted that relates to the evidence required and onus of proof at a Copyright Tribunal hearing. This section allows an infringement notice to be "conclusive" evidence, and give rises to a presumption that:
- each incidence of file sharing identified in the notice constitutes an infringement of the owner's copyright in the work identified;
- the information recorded is correct; and
- the infringement notice was issued in accordance with the Act.
The onus then shifts to the account holder to submit evidence or give reasons why the presumptions are incorrect. This effectively makes the infringement closer to a strict liability offence. The Bill is currently unclear as to what level of proof is required to rebut this evidence, a balance of probabilities or beyond reasonable doubt.
A concern raised by some is that lawyers are not generally permitted at a Tribunal hearing, therefore an account holder could potentially turn up to a hearing under-prepared, ill-advised, and unaware that they will need to effectively prove their innocence.
This is a piece of legislation that causes emotions to run high. The Select Committee has attempted to balance the need to deal with the prevalence of copyright infringement by file sharing, against the growing conviction that access to the internet is a "human right". It is a difficult balance, and one which will not satisfy all, or even many. Already there is a feeling that, while Internet freedom advocates will never be happy, the processes are so convoluted that rights owners will also not feel inclined to use them except in very extreme cases.