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Three-strike approach, $15K fine for draft Section 92A

Kelly Gregor | Thursday December 17, 2009 | 4 comments

The government is leaning toward a three notice approach when dealing with copyright breaches, Minister of Commerce Simon Power said yesterday.

Mr Power released the cabinet paper outlining the basis of the new legislation yesterday, which will be introduced to Parliament early next year. This follows a review of s92A of the Copyright Act 1994. 

The main points of the proposal are:
Film studios or record labels - right holders - will be able to ask internet service providers (ISPs) to issue users that breach copyright laws with warnings.

The first notice will inform the user that infringing has occurred and is illegal. Two further notices may be sent in order to stop the illegal downloading of content.

If infringeing continues after three notices, the right holder may seek a penalty of up to $15,000 at the Copyright Tribunal (in the suspended version of S92, ISPs had to sheriff the law). The amount will be based on the damage to the copyright owner.
 
Where serious and continued breaches occur, right holders will be able to go to court to seek a range of remedies, including the suspension of a user's account for up to six months.
 
Users will be able to issue counter notices, and can request a hearing if they feel they should not be penalised.
 

Mr Power said the three-notice procedure was essential to the process; "the procedure will both educate and warn file-sharers that unauthorised sharing of copyright works is illegal, and in turn stop a large proportion of illegal file sharing.

"A great deal of work has gone into finding a fair, effective, and credible process for the enforcement of copyright against illegal peer-to-peer file-sharers."

Mr Power said he wanted to stress that users would have an opportunity to defend any allegations brought against them by right holders.

"This was a complex issue to work through, and industry groups, intellectual property experts, and officials worked hard to ensure the issues raised in the submissions were addressed. I'm confident we now have a workable solution."
 
The public will be able to make further submissions at the select committee stage. A copy of the cabinet paper is available here.
 
Industry comment;
Tech Liberty spokesperson Thomas Beagle said while the industry still needs to see the final wording of the legislation, the new process seemed fairer and respected key civil liberties such as the right to a fair trial, which was something the old legislation failed to do.

But he said Tech Liberty remained concerned New Zealand laws would need to be amended to meet the Anti-Counterfeiting Trade Agreement (ACTA). Mr Beagle said while ACTA had not yet been publicly released, officials had admitted this could happen.
 
Mr Beagle said Tech Liberty was pleased the courts had been restored as the only body that could impose penalties, that the process retains the right to privacy with ISPs issuing infringement notices rather than right holders gaining access to users' account details.
 
NZFACT said it welcomed the government’s cabinet paper (that will form the basis of s92A of the Copyright Act 1994). NZFACT executive director Tony Eaton said;” We wish to thank the government for considering our inputs. NZFACT will consider the detail in today’s cabinet paper and offer further comment in due course.” 
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4

Lol, all the mums and dads with unsecured wireless connections (and there's lots of 'em, I can see 3 from my house) will end up getting fined $15000 - now that's funny.

And, don't violent crims just get a slap on the wrist? Aint it awesome how we apportion justice in this country.

Anonymous | Thursday, December 17, 2009 - 8:06pm

well said. Newsgroups, ftp etc will come back like the old days. anyway, you can go buy a 50c blank dvd and goto a video store hire it for $1 and 30 min later perfect copy for $1.50. or even cheaper if you rip to your HDD. There is always ways around things

Anonymous | Friday, December 18, 2009 - 10:39am

@Anonymous posted at 10:39:

There are always technology workarounds which is why it's so important to keep in mind the public relations aspect to modern copyright law. This involves offering legal alternatives, because if we don't keep the public on-side with respectable options and respectable copyright law then fewer people will pay for access to material.

Our press release about it is here: http://creativefreedom.org.nz/story.html?id=454

Matthew Holloway | Friday, December 18, 2009 - 11:37am

ummmm wont stop any of us just using a encrypted vpn service and tunneling our peer to peer traffic that way just stops and local traffic so in the end it just hurts isp backhaul bandwidth to the rest of the world which is already crap and setting up a vpn is incredibly easy xnet never sent me another letter
you can tell the people in power are so god dam intelligent
besides its not theft if i have taken nothing from you
the biggest cry babies the music & movie industry omg have u ever seen such a decadent lot i mean its not like there not making money without these laws in place look at wolverine they had the mega cry that there movie got released way early on the net
if i remember it was a gud few months before it came out
when that hit the cinema it made mega bucks turns out even tho
we downloaded it people still went to see it and it made epic amount of money these people are plane greedy period
so to summarize just another epic fail that will punish school children
and not the real pirates yarrr

Felix | Friday, December 18, 2009 - 6:36pm

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