With numerous multi-national companies and copyright holders desperate to stop the steady, and expensive, emergence of internet piracy, it is unsurprising that governments around the world are taking steps to tackle the problem. New Zealand is one of the countries leading the way in the fight against the elusive internet pirate. In September 2011, the Copyright (Infringing File Sharing) Amendment Act 2011 came into force in New Zealand. Sections 122D – 122F outlined what was to become known infamously as the “3 Strikes Rule”. The Act introduced a procedure by which affected copyright holders could inform Internet Service Providers (ISPs) if they suspect an internet user of copyright infringement through “peer-to-peer” (P2P) filesharing. The ISPs can then send out warning notices to the suspected infringer. If the user accumulates three of these notices, the copyright owner has the right to refer the case to the Copyright Tribunal. A maximum penalty of $(NZ)15,000 can be imposed and users can find themselves disconnected from the internet.
All this has not been without controversy however. The Act, and especially the “3 Strikes Rule”, has been widely condemned, domestically in New Zealand by internet users and human rights campaigners, and on the international forum. The United Nations commissioned a report in May 2011 which argued that countries contemplating measures to disconnect internet users would be acting in manner that was “disproportionate” and even “a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights”. In June 2011, the USA, Sweden, Canada, New Zealand (yes, New Zealand!), and others endorsed the findings of the report, suggesting the “3 Strikes Rule” was, “not a proportionate sanction”.
Warnings, fines and enforcement
Despite New Zealand’s political back-tracking, the 2011 Act has certainly produced interesting results. When the “3 Strikes Rule” came into force in September 2011 there was an immediate and drastic drop in the number of copyright infringements occurring through P2P filesharing. In that month, the number of incidences, as tracked by the Recording Industry Association of New Zealand, was 50,000, a significant decrease from 110,000 in August 2011. However, despite these promising early signs, the measures have not been enough to fully, or even substantially, eradicate illegal filesharing. Statistics show that four in 10 internet users still access pirated material online, and that the monthly figures have not decreased any further since the first month success. A direct correlation between the Act’s ineffectual impact and the fact that, since September, only 2,766 warning notices have been issued, is clear. Critics have blamed the fact that, despite copyright owners only being required to pay $(NZ)25 per notice issued, each notice has ended up costing the ISPs around $(NZ)400. Therefore, there is an understandable reluctance on the part of the ISPs to enforce any breach with this heavy-handed approach.
What does this mean for the UK?
These results have important implications for the United Kingdom. The Digital Economy Act 2010 was enacted with the intention of providing similar powers, as in New Zealand, to try and tackle illegal online filesharing. The Act sets out a process by which ISPs can send out warning letters to users, and any user who receives three within a one year period would be added to a “blacklist” and could face identification and pursuit by copyright holders, via a court order, under the Copyright, Designs and Patents Act 1988. However, theory and practical application do not always equate to the same thing; the UK version of the “3 Strikes Rule” has been repeatedly put off, and only in June 2012 did Ofcom publish a draft code to attempt to implement these measures, something that is unlikely to be in effect until 2014. This will be complimented by provisions that could force ISPs to punish pirates by downgrading internet speeds or even cutting them off altogether. However, the experiences of New Zealand could mean that even if/when the provisions are brought into force, it may be nothing more than a paper tiger. It remains to be seen whether or not the UK will learn from the failures of our Antipodean cousins and produce a set of measures with the required bite to stamp down on illegal filesharing once and for all.