The controversial section 92A of the Copyright Act 1994 has been repealed and will be replaced by a new process to deal with online copyright infringements from 1 September this year.
In 2008 the Copyright (New Technologies) Amendment Act 2008 introduced a new section 92A to the Copyright Act 1994 which required Internet service providers (ISPs) to police Internet copyright infringements and adopt a policy providing for the termination of a repeat infringer's Internet account. However, Section 92A was never brought into force.
Under the new regime introduced by the Copyright (Infringing File Sharing) Amendment Bill 2010, a copyright owner (or a person acting as agent for one or more copyright owners) can request an ISP to issue infringement notices to alleged infringers if the copyright owner provides the ISP with information that identifies an IP address at which an infringement of its copyright is alleged to have occurred as a result of file sharing. Subject to various conditions, the ISP must match the IP address with the account holder and issue the appropriate infringement notice to the alleged infringer no later than 7 days after receiving the request.
There are three stages of infringement notices: a detection notice, a warning notice, and an enforcement notice. It is only after an enforcement notice is issued to an alleged infringer that the copyright owner may take enforcement action by seeking an order from the Copyright Tribunal against the alleged infringer for a sum of up to $15,000.
The Act also allows the copyright owner to seek an order from a District Court requiring the ISP to suspend the infringer’s Internet account for up to 6 months. However, the Act provides that no-one can apply for this order until a date has been set by Order in Council (which can be made by the Governor General on the recommendation of the Minister of Justice). This provision has been included to allow time to see whether the notices (and the remedy through the Copyright Tribunal) prove to be sufficient mechanisms to achieve the desired deterrent effect.
The regime only applies to ISPs who fall under the definition of “Internet protocol address providers”. These are ISPs that, other than as an incidental feature of their main business activities, operate a business that:
- offers the transmission, routing, and providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing; and
- allocates IP addresses to its account holders; and
- charges its account holders for its services; and
- is not primarily operated to cater for transient users.
The regime will not apply to services provided by cellular mobile networks until 1 August 2013, or another date specified by Order in Council.