Basics of the new law

Once you’re read the basics, have a look at the Frequently Asked Questions for more information.

What’s the new law about?

The law is called the Copyright (Infringing File Sharing) Amendment Act 2011. It amends the Copyright Act 1994 to provide owners of copyrighted works such as movies, TV shows and music a quicker and easier way to penalise people infringing their copyright via online file sharing. The intention of the law changes is to crack down on peer-to-peer file sharing.

You get 2 notices (warnings) and then, following the 3rd notice, the copyright owner can take you to the Copyright Tribunal. Depending upon circumstances, generally the minimum penalty is $275 and maximum $15,000, payable to the copyright owner.

The person who owns the Internet account (account holder) is liable, even if he or she wasn’t the person who broke the law. Allegations of copyright infringement made against you (the account holder) by the copyright owner are presumed to be correct unless you give evidence or reasons why you aren’t guilty.

When does the new law start?

The law comes into force on 1 September 2011.

However, notices can be sent for alleged infringements occurring in the 21 days before the notice. Therefore, allegations of infringements from 11 August 2011 onwards count under the new law.

What’s covered by the law changes?

Only online file sharing that infringes copyright.

“File sharing” is defined by the new law as:

  • material uploaded or downloaded from the Internet (and)
  • using an application or network that enables the simultaneous sharing of material between multiple users.

Anything that doesn’t meet both parts of this definition is not covered by the new law.

The intention of the law changes is to crack down on peer-to-peer file sharing (see details in InternetNZ press release). This means using peer-to-peer protocols like Gnutella and BitTorrent with peer-to-peer software like uTorrent, BitComet, FrostWire, Ares, LimeRunner, and Vuze.

While the intention of the law changes is to target peer-to-peer infringing file sharing alone, the definitive word on what’s covered and what’s not will depend upon decisions of the Copyright Tribunal and Courts if the scope of the law is ever tested.

Who is an account holder?

The person(s) or organisation recorded by the Internet Service Provider as the owner of a particular account. Basically, the name or names on your Internet bill. If you have a combined phone and Internet bill, it’ll be the name(s) on your monthly phone bill.

Under the new law, the account holder is liable, whether or not he or she was the person who actually downloaded or uploaded the infringing file. The account holder will get infringement notices and be fined by the Copyright Tribunal.

Unlike a car owner’s liability for speed camera fines, where you can claim an exemption if someone else was driving the car and you are able to name that person or you couldn’t identify the driver despite taking all reasonable steps to do so, the Internet account holder liability under the new law is absolute.

What’s an IPAP?

The law uses the term Internet Protocol Address Provider (IPAP) rather than Internet Service Provider. For most practical purposes, they are the same thing.

What’s the role of my Internet Service Provider?

Copyright owners will detect alleged infringement covered by the law changes of their material. Based on the infringing IP (Internet Protocol) address, they will inform the relevant Internet Service Provider who will:

  • Receive and check notices and payment from copyright owners
  • Match the IP address allegedly involved in the copyright infringement to your account
  • Send the account holder the appropriate infringement notice and information
  • If you challenge the notice, receive it and forward it to the copyright owner
  • If the copyright owner rejects your challenge, receive the rejection and the reasons for the rejection and pass it on to you
  • If the copyright owner accepts your challenge, wipe the notice off its records
  • On the order of the Copyright Tribunal, provide the Tribunal with your name and contact details as well as copies of the first 2 notices and any evidence required
  • Follow instructions of the Courts
  • Hold information and records as specified by the law
  • Annually publish a compliance report online
  • Handle calls and support requests from their customers

How much does it cost copyright owners to send me a notice?

They will pay $25 + GST per notice to your Internet Service Provider.

Can my Internet connection be taken away?

The law allows a District Court to order suspension of your Internet account for up to 6 months. However, this penalty is currently not in force and is not expected to be before 2013. It can come into force at any time in the future if the Government decides that it should.

Does the new law apply to alleged infringements using a mobile phone/network?

Not yet. Unless delayed or repealed by the Government, the law will apply to infringements on mobile networks from 1 October 2013.

How does the 3 strikes system work?

Basically the account holder receives two notices, or strikes, per rights owner from their Internet Service Provider and then, after the account holder receives the third strike within 9 months, the rights owner can apply to the Copyright Tribunal for a penalty of up to $15,000 against the account holder.

The first strike is called a Detection notice, the second a Warning notice, and the third an Enforcement notice. There are several time periods in relation to the notices set out in law.

What’s the process of sending a notice?

A rights owner detects the Internet Protocol (IP) address of the infringer and informs the appropriate Internet Service Provider. The Internet Service Provider checks the notice for compliance with the law and regulations, after which they match the IP address to an account to determine the identity of the account holder. The Internet Service Provider will then look at its records to decide which strike to issue (first, second or third) and send it to the account holder.

If an Internet Service Provider has specified a form for rights owners to provide information about alleged copyright infringements, then rights owners must use that particular form.

What’s a rights owner?

Either the copyright owner or their agent. If an agent represents multiple copyright owners, all copyright infringements are bundled together for all copyright owners that the agent represents.

For example, NZFACT is the local representative of the Motion Picture Association, which is the agent for the major Hollywood studios (Walt Disney, Paramount, Sony, Warner Brothers, etc.) while RIANZ represents the four major music labels (EMI, Sony, Warner and Universal). Copyright infringement of, say, a movie and a TV show whose copyright owners are represented by NZFACT will be counted as infringements against the same rights owner.

What happens if there are multiple copyright infringements?

There are two major factors to consider. First, the time period during which the infringements occurred. Second, whether the copyright infringements are against one or multiple rights owners.

Think of each rights owner having their own, independent stream of notices. An account holder gets notices per stream, independent of other streams. So, for example, an account holder could get multiple first (Detection) notices at the same time in respect of different rights owners. The account holder could also get a first (Detection) notice from one rights owner even as he or she is getting a second (Warning) or third (Enforcement) notice from another rights owner.

What are the time periods applicable for multiple infringements?

In relation to each rights holder’s stream, see the diagram. Note that reference to days is calendar days, not working days.

 

timeline

Notices timeline

 

Starting from point marked “A”:
The rights owner informs the Internet Service provider of an alleged copyright infringement. The infringing act needs to have been in the prior 21 days. The Internet Service Provider has a maximum of 7 days to process the information and issue a first (Detection) notice to the account holder.

Detection notices expire after 9 months from their issue date (except if an Enforcement notice is issued for a third strike and expires, see below).

Copyright infringements for 28 days after the date of the Detection notice, called the “on-notice period” are not counted towards a second strike. They are however included in any further notices and used by the Copyright Tribunal in determining the penalty payable to the rights owner (if things go that far).

After that, the same cycle repeats for the second (Warning) notice. Warning notices expire at the same time as the Detection notice (except if an Enforcement notice is issued for a third strike and expires, see below).

The cycle then repeats for the third (Enforcement) notice. Once an Enforcement notice is issued, there is a “quarantine period” of 35 days when copyright infringements are not counted for the current notices cycle. At the end of the quarantine period, all three notices expire. At the same time, the notices cycle can start all over again.

Also, see the notice process diagram (pdf) from the Ministry of Economic Development.

How are multiple copyright infringements against the same rights owner handled?

Multiple infringements in the same period are bundled together in one notice. The earliest copyright infringement in the period is noted as the triggering infringement.

The three periods where copyright infringements are bundled together are shown as red lines in the diagram above. These are:

  • For the first (Detection) notice: 21 days prior to the rights owner informing the Internet Service Provider of an alleged copyright infringement. Also, upon the expiry of the quarantine period (35 days) of the previous notices cycle, if any
  • For the second (Warning) notice: After the on-notice period ends (28 days from the date of the Detection notice) and for so long as the Detection notice has not expired
  • For the third (Enforcement) notice: After the on-notice period ends (28 days from the date of the Warning notice) and for so long as the Warning notice has not expired

Can a notice be challenged?

Yes, both when an account holder gets it and also at the Copyright Tribunal. The grounds for a challenge as well as its acceptance or rejection by the rights owner are not explicitly specified in the law. Successful challenge can lead to the notice being cancelled (but previous notices still continue).

If a first (Detection) notice is successfully challenged, the notice is cancelled and treated as if it were not issued. Further, no infringements against that rights owner between the date of the infringement that triggered the notice and the date on which the notice is cancelled can be included in an infringement notice relating to that rights owner.

Successfully challenging a copyright infringement in a second (Warning) or third (Enforcement) notice with multiple copyright infringements means that:

  • if the challenged infringement was the one that triggered the notice, the notice is cancelled
  • if the challenged infringement was not the one that triggered the notice, the other infringements and the notice itself still continues to count.

Is a notice proof that a person has infringed copyright?

No, it is an allegation of copyright infringement. However, unless it is challenged by the account holder at the Copyright Tribunal, the notices and the infringements will be presumed to be correct.

What’s the process to challenge a notice?

The account holder will receive a challenge notice form with every infringement notice from his/her Internet Service Provider. The account holder must fill out this form and make sure the Internet Service Provider gets it within 14 calendar days of the notice date. The Internet Service Provider immediately forwards the challenge to the rights owner who can accept or reject the challenge.

If the rights owner does not reject or respond to the challenge within 28 calendar days from the date of the notice, the challenge is deemed to be accepted. These 28 days are the “on-notice” periods.

If a rights owner rejects a challenge, the reason for doing so is communicated to the account holder via the Internet Service Provider.

Even if the challenge is rejected, objections can be raised again at the Copyright Tribunal.

Also, see the challenge process diagram (pdf) from the Ministry of Economic Development.

What information does a notice contain?

At least the following information:

  • infringement notice number uniquely identifying it
  • date of the notice
  • contact details of the Internet Service Provider
  • identify the infringement that has triggered the issue of the notice
  • the IP address where copyright infringement is alleged to have occurred
  • date and time of that alleged infringement
  • name and type of the work infringed and any unique identifiers of the work
  • name of the copyright owner
  • type of copyright infringement
  • the file sharing application or network used in the infringement
  • the previous notice(s) issued to the account holder in relation to the rights owner
  • any other alleged infringements against the rights owner that have occurred since the date of the preceding notice(s)
  • explanation of the consequences if further infringing occur and, in the case of an Enforcement notice, that enforcement action may now be taken against the account holder
  • explanation of how the account holder may challenge the notice and a challenge notice form (or a link to it)
  • a link to the copyright website run by the Ministry of Economic Development
  • in the case of an Enforcement notice, explanation that, unless it is cancelled, no further infringement notices will be issued in respect of infringements against the rights owner until the end of the quarantine period (35 days beginning from the date of the enforcement notice).