All has been quiet on the file-sharing front since two internet users were issued with their third-strike notices in June 2012. The third-strikes (enforcement notices) were the first of their kind under the Copyright (Infringing File Sharing) Amendment Act 2011, carrying the potential threat of proceedings before the Copyright Tribunal and a maximum fine of $15,000.
Surprisingly, neither of the enforcement notices, which were issued on behalf of the Recording Industry Association of New Zealand (RIANZ), proceeded to a hearing before the Copyright Tribunal. The opportunity for RIANZ to elect a hearing in respect of those notices lapsed in July, with no public explanation being given.
However, according to a Ministry of Justice spokesperson, RIANZ has now applied for three internet users to be brought before the Copyright Tribunal and fined for their alleged copyright infringement. While there are still many checks to be made before this can happen, the applications by RIANZ show that it wishes to send a clear public message to New Zealand file-sharers.
The targeting of individual file sharers has a long history in America, where between 2003 and 2008, around 35,000 lawsuits were said to have been filed by the Recording Industry Association of American (RIAA) against individuals accused of illegal file sharing.
Assuming that the current applications have been made in accordance with the Act (within 35 days of the relevant enforcement notices and adequately detailed) and the proceedings are allowed, these might well be the first reported proceedings under any three-strikes system for copyright infringement. New Zealand copyright lawyers have been eagerly awaiting results in other three-strikes jurisdictions, such as France, although the debate overseas has largely focussed on the legality of internet termination.
Consequences for a third-strike under the French HADOPI system include a potential fine and/or the temporary disconnection of internet connection. However, after 1 million warning letters, 99,000 second-strikes, and 314 referrals for potential disconnection, no punishment has issued for internet users receiving their third-strikes.
The French Government is now reviewing whether HADOPI is achieving its goals, or simply costing money. Culture Minister Aurelie Filipetti has gone on record to say that HADOPI has been nothing but a waste of money, estimating costs to be in the region of €12 million (NZ$19 million) per year. This figure is in addition to the higher costs involved for internet service providers and higher subscription fees being paid by internet users as a result of the system.
New Zealand’s infringement notice fees ($25 per notice, payable by the copyright owner or representative, such as RIANZ) are currently under review by the Ministry for Economic Development. While the current maximum fine is set at $15,000, fines issued by the Copyright Tribunal could be as low as a few hundred dollars.
Regardless of quantum, it appears that New Zealand will be one of the first countries in the world to follow through with its three-strikes legislation.