A number of internet customers who have each received their third and final notices under the infringing file-sharing provisions of the Copyright Act will soon be brought before the Copyright Tribunal. In each case the relevant rights holder, all believed to be members of the Recording Industry Association of NZ, has made an application to the Tribunal under section 122O of the Act for an award of money to be paid by the internet account holder to the rights holder. The Tribunal can order an account holder to pay up to $15,000 for each such application by a rights holder. In setting the financial award payable by an account holder the regulations require the Tribunal to determine:
- What it would have cost to lawfully download the relevant item
- If it wasn't available for download, what it would have cost to purchase the item in another form
- If the item wasn't available in any form then the Tribunal must consider the sum sought by the rights holder or whatever amount the Tribunal considers reasonable.
The Tribunal must also consider the costs paid by the rights holder to the ISP and the Tribunal relating to the alleged infringement as well as an amount that the Tribunal considers appropriate as "a deterrent against further infringing".
It will be very interesting to see what approach the Tribunal takes to these financial awards and the alleged infringers. If each one has downloaded, say, three songs from the relevant rights holder and these songs are all available online from a service such as iTunes for $2.99 each, how much extra will the Tribunal require the infringer to pay to deter him or her from further illegal downloading? Will that amount be the same if the account holder is grandma and her grubby teenage grandkid did the downloading using her account without her knowledge? What if the account holder is only one flatmate in a flat and it can’t be established whether she or one of her four flatmates did the downloading?
In fact RIANZ has withdrawn its claim against one woman who was the account holder for her flat. She is the only one of the eight people to be prosecuted to have requested a hearing in person before the Tribunal (the fate of the other seven will be determined on the papers only). In this woman's case RIANZ had been seeking $1,250 as a "deterrent".