Copyright Tribunal asked to take action against repeat infringers

A year after the amendments to the Copyright Act 1994 were introduced to prohibit illegal downloading and file sharing, the first cases of alleged copyright infringement under the 'three strikes law' are finally set to be heard by the Copyright Tribunal.

Since section 122(A) through 122(U) of the Copyright Act were introduced in September 2011, over 2,700 infringement notices have been sent out by Internet Service Providers (ISPs) at the request of the Recording Industry Association of New Zealand (RIANZ) to people who they allege have illegally downloaded copyright material. There is evidence that internet piracy has halved since the 'three strikes' law was introduced, however copyright infringement in New Zealand remains a major concern for industry associations such as RIANZ (which represents several major record labels, including Sony, EMI, Universal and Warner) and the New Zealand Federation Against Copyright Theft (NZFact), which was established by the Motion Picture Association and represents major film and TV studios.

There was some surprise in July this year when no action was taken against the first alleged infringers to receive third and final notices. In those early cases of a third notice being issued, RIANZ chose not to take action within the mandated 35 day period following the issue of the third notice, meaning that all of the notices previously sent to those customers lapsed, effectively putting those customers back to square one.

The next three people who received their final notices have not gotten off so easily. RIANZ has now taken the next step in its fight against illegal downloading by filing applications with the Ministry of Justice which request that the alleged infringers be ordered to make payments to the rights owners for their copyright infringement. It is likely the affected people will be required to appear before the Copyright Tribunal and account for their actions.

One of the issues that Copyright Tribunal may have to grapple with is what to do where it is not obvious who the person who downloaded the material is. The legislation provides that the account holder (being the person who holds the account with the relevant internet provider) will be liable for any file sharing, rather than the individual who may have actually downloaded the material. It is not unlikely that in some of the cases where there has been infringement, the account holder will not have downloaded the material personally, but rather it may have been downloaded by another family member, flatmate or a guest. It will be interesting to see whether the Copyright Tribunal will be inclined to use its discretion to award a lower penalty in cases where the account holder themselves is unlikely to have been the person that downloaded the material.

If the Copyright Tribunal finds that the people who come before it have infringed copyright, the penalty awarded could be up to $15,000. Any amounts awarded will be paid directly to the owners of the material. At the moment, it is expected that the maximum penalty would only be awarded where there is infringing on a large scale that is causing significant financial loss to the copyright owners (for example, by individuals copying and sharing a large number of movies before their New Zealand release date). If the details of the upcoming proceedings are released, this could prove a useful indication of what type of penalties infringers can expect in the future.