Copyright (Infringing File Sharing) Amendment Bill

7 New heading and sections 122A to 122R inserted

• The following heading and sections are inserted after section 122:

  “Infringing file sharing

  “122A Interpretation for sections 122B to 122R

  • “(1) In this section and sections 122B to 122R, unless the context otherwise requires,—

    “account holder, in relation to an ISP, means a person who has an account with the ISP

    “detection notice means a detection notice issued by an ISP to an account holder in respect of an alleged infringement against a copyright owner (see section 122D)

    “enforcement notice means an enforcement notice issued by an ISP to an account holder in respect of at least 3 alleged infringements against a copyright owner (see section 122F)

    “file sharing is where material—

    • “(a) is downloaded from the Internet; or

    • “(b) is made available on the Internet by a user in a form in which the material may be downloaded by 1 or more other users; or

    • “(c) is transferred, directly or indirectly, via the Internet from one user to another user

    “infringement means an incidence of file sharing that involves the infringement of copyright in a work, or part of a work, by a user

    “infringement notice means a detection notice, a warning notice, or an enforcement notice that—

    • “(a) is issued to an account holder by an ISP; and

    • “(b) identifies the infringement that triggers the notice; and

    • “(c) in the case of a warning notice or an enforcement notice, identifies any other infringements that have occurred since the date of the detection notice

    “IP address means an Internet protocol address

    “ISP, or Internet service provider, means a person that operates a business that—

    • “(a) offers the transmission, routing, and providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing; and

    • “(b) charges its account holders for the services provided in paragraph (a) on a regular basis; and

    • “(c) is not primarily operated to cater for transient users

    “on-notice period means the period of 3 weeks beginning on the date of a detection notice or a warning notice and ending with the close of the date that is 3 weeks later

    Example

    • (1) A detection notice is issued on Monday, 1 March. The on-notice period ends with the close of Sunday, 21 March.

    • (2) A warning notice is issued on Friday, 26 March. The on-notice period ends with the close of Thursday, 15 April.

    “quarantine period means a period of 4 weeks beginning on the date of an enforcement notice and ending with the close of the date that is 4 weeks later

    “warning notice means a warning notice issued by an ISP to an account holder in respect of at least 2 alleged infringements against a copyright owner (see section 122E).

    “(2) In this section and sections 122B to 122R, a reference to the date of an infringement, an infringement notice, or a challenge is a reference to,—

    • “(a) in the case of an infringement, the date on which it is recorded by a copyright owner as having occurred:

    • “(b) in the case of an infringement notice, the date on which it is issued by the ISP:

    • “(c) in the case of a challenge made under section 122G, the date on which it is received from an account holder by an ISP.

  “122B Overview of infringing file sharing regime

  • “(1) Sections 122A to 122R provide copyright owners with a special regime for taking enforcement action against people who infringe copyright through file sharing.

    “(2) The regime provides that, at the instigation of copyright owners, ISPs must issue infringement notices to alleged infringers.

    “(3) The 3 kinds of infringement notices, in the order in which they are given, are a detection notice, a warning notice, and an enforcement notice.

    “(4) After an enforcement notice is issued to an alleged infringer, the copyright owner may take enforcement action by seeking the following orders against the alleged infringer:

    • “(a) an order from the Tribunal for a sum of up to $15,000:

    • “(b) an order from a District Court requiring the ISP to suspend the account holder's account for up to 6 months.

    “(5) Time limits apply to all stages of the regime.

    “(6) This section is by way of explanation only. If any provision is inconsistent with it, the other provision prevails.

  “122C ISPs to send infringement notices

  • “(1) If a copyright owner provides an ISP with information that identifies an IP address at which an infringement of its copyright is alleged to have occurred as a result of file sharing, the ISP must—

    • “(a) match the IP address with the account holder to whom it related at the time of the infringement; and

    • “(b) issue the appropriate infringement notice to the account holder within 1 week after receiving the information.

    “(2) An ISP need not comply with the obligation in subsection (1)(a) to match IP addresses if—

    • “(a) the alleged infringement occurred more than 1 week before the ISP received the relevant information from the copyright owner; or

    • “(b) the alleged infringement occurred after an infringement that triggered a detection notice but before the date of that detection notice; or

    • “(c) the alleged infringement occurred during a quarantine period applying to the account holder with respect to the copyright owner; or

    • “(d) the copyright owner has not complied with regulations made under section 234 that impose requirements on the information, or form of information, to be provided for the purposes of subsection (1); or

    • “(e) the copyright owner has not paid, or has not agreed to pay, a fee required by the ISP, as permitted by section 122R.

    “(3) An ISP need not comply with the obligation in subsection (1)(b) to issue notices if—

    • “(a) any of subsection (2)(a) to (e) applies; or

    • “(b) the alleged infringement occurred within an on-notice period applying to the account holder with respect to the copyright owner; or

    • “(c) the copyright owner agrees, or asks, that a notice not be issued.

    “(4) Notices issued to account holders must be sent by whatever method the ISP uses to communicate with the account holder for billing purposes, unless the account holder and ISP agree in writing to use a different method.

  “122D Detection notices

  • “(1) An ISP must issue a detection notice in relation to a copyright owner to an account holder—

    • “(a) the first time the ISP matches the account holder with an IP address at which an infringement is alleged by the copyright owner to have occurred; and

    • “(b) the first time, following the end of a quarantine period, the ISP matches the account holder with an IP address at which an infringement is alleged by the copyright owner to have occurred.

    “(2) A detection notice must be in the prescribed form (if a form is prescribed) and must—

    • “(a) identify the copyright owner; and

    • “(b) identify the alleged infringement that has triggered the issue of the notice; and

    • “(c) identify the date of that alleged infringement; and

    • “(d) state the date of the detection notice; and

    • “(e) explain the consequences to the account holder if further infringing occurs; and

    • “(f) explain how the account holder may challenge the notice; and

    • “(g) comply with any other requirements that may be prescribed in regulations.

    “(3) A detection notice expires 9 months after the date of the detection notice, unless an enforcement notice is issued to the account holder in respect of further infringing against the copyright owner before that date, in which case the detection notice expires 4 weeks after the date of the enforcement notice.

  “122E Warning notices

  • “(1) An ISP must issue a warning notice in relation to a copyright owner to an account holder if—

    • “(a) the ISP matches the account holder with an IP address at which an infringement is alleged by the copyright owner to have occurred; and

    • “(b) the infringement occurred at least 3 weeks after the date of a detection notice issued to the account holder in relation to the same copyright owner, but before that detection notice expires.

    “(2) A warning notice must be in the prescribed form (if a form is prescribed) and must—

    • “(a) identify the copyright owner; and

    • “(b) identify the infringement that has triggered the issue of the warning notice; and

    • “(c) identify the date of that alleged infringement; and

    • “(d) identify the most recent detection notice issued to the account holder in relation to the copyright owner (the preceding detection notice); and

    • “(e) identify any other alleged infringements by the account holder against that copyright owner that have occurred since the date of the preceding detection notice; and

    • “(f) state the date of the warning notice; and

    • “(g) explain the consequences to the account holder if further infringing occurs; and

    • “(h) explain how the account holder may challenge the notice; and

    • “(i) comply with any other requirements that may be prescribed in regulations.

    “(3) A warning notice expires 9 months after the date of the preceding detection notice, unless an enforcement notice is issued to the account holder before that date, in which case the warning notice expires 4 weeks after the date of the enforcement notice.

  “122F Enforcement notices

  • “(1) An ISP must issue an enforcement notice in relation to a copyright owner to an account holder if—

    • “(a) the ISP matches the account holder with an IP address at which an infringement is alleged by the copyright owner to have occurred; and

    • “(b) the infringement occurred at least 3 weeks after the date of a warning notice issued to the account holder in relation to the same copyright owner, but before that warning notice expires.

    “(2) An enforcement notice must be in the prescribed form (if a form is prescribed) and must—

    • “(a) identify the copyright owner; and

    • “(b) identify the infringement that has triggered the issue of the enforcement notice; and

    • “(c) identify the date of that alleged infringement; and

    • “(d) identify the most recent warning notice issued to the account holder in relation to the copyright owner, and the preceding detection notice; and

    • “(e) identify any other alleged infringements against the copyright owner that have occurred since the date of the preceding detection notice; and

    • “(f) state the date of the enforcement notice; and

    • “(g) explain that enforcement action may now be taken against the account holder; and

    • “(h) explain that, unless the enforcement notice is cancelled, no further infringement notices may be issued in respect of infringements against the copyright owner until the end of the quarantine period; and

    • “(i) explain how the account holder may challenge the notice; and

    • “(j) comply with any other requirements that may be prescribed in regulations.

    “(3) An enforcement notice expires 4 weeks after its date of issue.

    “(4) On issuing an enforcement notice to an account holder, the ISP must send a copy of the notice to the relevant copyright owner, but must omit any information that discloses the name or contact details of the account holder.

  “122G Challenging infringement notices

  • “(1) An account holder may challenge an infringement notice by sending a challenge, in the prescribed form, to the ISP that issued the infringement notice.

    “(2) A challenge is not valid if it is received more than 1 week after the date of the infringement notice to which it relates.

    “(3) An ISP that receives a valid challenge to an infringement notice must immediately forward it to the relevant copyright owner if the challenge raises an issue that should be addressed by the copyright owner rather than by the ISP.

    “(4) The ISP or copyright owner (as appropriate) must consider every valid challenge and, if it decides to reject a challenge, must notify the account holder of that fact and the reason for the rejection.

    “(5) If the copyright owner responds to a challenge, the ISP must immediately forward the response to the account holder.

    “(6) If a challenge is rejected, it may be raised again by the account holder in any enforcement proceedings.

  “122H Effect of challenge to, and cancellation of, infringement notice

  • “(1) A challenge is deemed to be accepted if it has not been rejected by the relevant copyright owner or ISP within 3 weeks after the date of the infringement notice to which it relates.

    “(2) If a challenge to a detection notice is accepted or deemed to be accepted,—

    • “(a) the detection notice and any subsequent infringement notices sent to the account holder in relation to the same copyright owner are cancelled and treated as if they had not been issued; and

    • “(b) no infringements that occurred between the date of the infringement that triggered the detection notice and the date on which the detection notice is cancelled may be included in an infringement notice.

    “(3) If a challenge to a warning notice or an enforcement notice is accepted or deemed to be accepted,—

    • “(a) the notice is cancelled and treated as if it had not been issued; but

    • “(b) if the challenge related only to an infringement that was not an infringement that triggered a notice, the notice is not cancelled but the infringement is treated as if it were not included in the notice.

  “122I Enforcement action after issue of enforcement notice

  • “(1) A copyright owner may take enforcement action against an account holder who has been issued with an enforcement notice in respect of infringements against the copyright owner by doing either or both of the following:

    • “(a) applying to the Tribunal for an order under section 122N against the account holder:

    • “(b) applying to a District Court for an order under section 122O against the account holder.

    “(2) Nothing in sections 122A to 122R affects the rights and remedies of copyright owners under any other provision of this Part in relation to any infringement of copyright, whether or not the infringement has been included in an infringement notice.

  “122J Application to Tribunal

  • “(1) An application to the Tribunal for an order under section 122N may not be made after the end of the quarantine period or earlier than—

    • “(a) 1 week after the date of the enforcement notice; or

    • “(b) if a valid challenge is received, 3 weeks after the date of the enforcement notice.

    “(2) The application must be in the prescribed form and include or be accompanied by—

    • “(a) a copy of the enforcement notice as forwarded to the copyright owner; and

    • “(b) evidence that the copyright owner is the owner of the material in which copyright is alleged to be infringed; and

    • “(c) a statement of which of the alleged infringements identified in the enforcement notice the copyright owner is seeking to enforce; and

    • “(d) a copy of any challenges received by the copyright owner in respect of any of those alleged infringements, along with any responses by the copyright owner to those challenges; and

    • “(e) a statement of the amount that the copyright owner is seeking from the account holder; and

    • “(f) the prescribed fee for the application.

    “(3) If the Tribunal is satisfied that an enforcement notice has been sent to the account holder in accordance with this Act, the Tribunal must order the relevant ISP to produce to the Tribunal—

    • “(a) the name and contact details of the account holder; and

    • “(b) copies of the detection and warning notices sent to the account holder.

    “(4) The ISP must provide those contact details and notices to the Tribunal as soon as practicable, along with any challenges that were received by it but not forwarded to the copyright owner, and any responses to those challenges.

    “(5) If an infringement notice expires, and the notice relates to an application made in accordance with subsection (1), the expiry does not affect the continuation and completion of any proceedings.

  “122K Notice of proceedings

  • “(1) The Tribunal must give notice of the proceedings, in the prescribed form, to the account holder and any parties that the Tribunal directs to be joined.

    “(2) The notice of proceedings must—

    • “(a) identify all the infringements in relation to which the copyright owner seeks an order; and

    • “(b) specify the amount sought; and

    • “(c) set out the account holder's right to make submissions and request a hearing.

    “(3) The parties to proceedings before the Tribunal for an order under section 122N are—

    • “(a) the applicant copyright owner; and

    • “(b) the account holder identified in the enforcement notice; and

    • “(c) any other party that the Tribunal directs be added as a party in accordance with section 212(2).

  “122L Decisions generally made on papers and without hearing

  • “(1) Proceedings before the Tribunal for an order under section 122N must be determined on the papers unless—

    • “(a) any party to the proceedings requests a hearing; or

    • “(b) the Tribunal considers that a hearing should be held.

    “(2) The papers on which the proceedings are determined are—

    • “(a) the copyright owner's application to the Tribunal; and

    • “(b) copies of the infringement notices sent to the account holder; and

    • “(c) copies of challenges to any infringement notice, and any responses to those challenges; and

    • “(d) any additional information provided by the copyright owner; and

    • “(e) any submissions by the account holder made within the time specified by the Tribunal.

    “(3) The Tribunal may determine its own procedure for determining an application that is dealt with on the papers, subject to any regulations.

    “(4) The Tribunal must make all reasonable efforts to ensure that, unless it orders otherwise or an order is made against the account holder, the identity and contact details of the account holder are not disclosed to the copyright owner.

  “122M If hearing is held

  • “(1) If a hearing is held, sections 211 to 224 apply, other than sections 213(1) to (3) and 214(1) and (2).

    “(2) Every party to the proceedings may appear personally and be heard.

    “(3) A party may not be represented by a representative, except as follows:

    • “(a) a corporation or unincorporated body of persons may be represented by an officer, employee, or member of the corporation or body, or a person who holds a majority interest in it:

    • “(b) a person jointly liable or entitled with another or others may be represented by 1 of the persons jointly liable or entitled:

    • “(c) a partnership may be represented by an employee of a partnership:

    • “(d) a minor, or a person under a disability, may be represented by another person:

    • “(e) if the Tribunal is satisfied that, for sufficient cause, a party is unable to appear in person or is unable to present his or her case adequately.

    “(4) A representative may not be a lawyer, unless the Tribunal gives leave.

    “Compare: 1988 No 110 s 38

  “122N Tribunal order requiring payment to copyright owner

  • “(1) The Tribunal must order an account holder to pay a copyright owner a sum if the Tribunal is satisfied that—

    • “(a) each of the 3 alleged infringements that triggered the infringement notices issued to the account holder were infringements of the copyright owner's copyright that occurred at an IP address of the account holder; and

    • “(b) the 3 notices were issued in accordance with this Act.

    “(2) The sum specified in the Tribunal order must be determined in accordance with regulations made under this Act and must include a sum in relation to every infringement identified in the enforcement notice that the Tribunal is satisfied was committed against the copyright owner at an IP address of the account holder.

    “(3) If the Tribunal makes an order under subsection (1), it may also make an order requiring the account holder to pay to the copyright owner either or both of the following:

    • “(a) a sum representing a contribution towards the fee or fees paid by the copyright owner to the ISP under section 122R:

    • “(b) reimbursement of the application fee paid by the copyright owner to the Tribunal.

    “(4) The total amount ordered by the Tribunal to be paid by the account holder must not exceed $15,000.

    “(5) An order made under this section may be enforced as if it were a judgment for a sum of money made by a District Court.

    “(6) The Tribunal may award costs against a party to the proceedings only if the Tribunal is satisfied that the party has engaged in conduct intended to impede the prompt determination of the proceedings.

  “122O Court order suspending account holder's account

  • “(1) A District Court may, on application by a copyright owner, make an order requiring an ISP to suspend the account of an account holder for a period of up to 6 months if the court is satisfied that—

    • “(a) an enforcement notice has been sent to the account holder in accordance with this Act in relation to infringements against the copyright owner; and

    • “(b) the application for the order is made at least 2 weeks after the date of the most recent enforcement notice sent to the account holder in relation to infringements against the copyright owner; and

    • “(c) suspension of the account is appropriate in the circumstances, given the seriousness of the infringing.

    “(2) In considering the seriousness of the infringing, the court may consider any evidence put before it by the copyright owner, including any infringement notices relating to infringements against the copyright owner that have been sent to the account holder at any time.

    “(3) When considering the circumstances, and determining the duration, of a proposed suspension, the matters that the court may consider include, but are not limited to,—

    • “(a) the degree of the account holder's reliance on access to the Internet; and

    • “(b) the identity (if known) of the user who engaged in the infringements identified in the notices; and

    • “(c) any other matter that may be specified in regulations.

  “122P Order requiring ISP to disclose account holder details

  • “(1) This section applies if a copyright owner wishes to apply for an order under section 122O against an account holder, but does not know the identity of the account holder.

    “(2) A District Court may make an order requiring an ISP to disclose to a copyright owner, as soon as practicable, the name and contact details of an account holder if—

    • “(a) the copyright owner applies to the District Court for an order under this section; and

    • “(b) the District Court is satisfied, on the basis of information included in the application, that an enforcement notice has been sent to the account holder in accordance with this Act in relation to infringements against the copyright owner; and

    • “(c) the copyright owner has given an undertaking to the court that, if the account holder's details are released to it, it will use that information only for purposes associated with seeking and enforcing an order made under section 122O.

  “122Q Obligations of ISPs

  • “(1) Every ISP must retain, for a minimum of 40 days, information on the use of the Internet by each account holder.

    “(2) Every ISP must retain, for a minimum of 12 months, the following information:

    • “(a) any information about infringements that is sent by copyright owners to the ISP for the purpose of matching the infringement to an account holder:

    • “(b) copies of the infringement notices issued to an account holder:

    • “(c) any challenges received by the ISP and any responses to those challenges:

    • “(d) which infringement notices (if any) have been cancelled or have expired:

    • “(e) any orders made under section 122O suspending an account holder's account.

    “(3) No ISP may release the name or contact details of an account holder to a copyright owner unless—

    • “(a) authorised to do so by the account holder; or

    • “(b) required to do so by the Tribunal or a court.

    “(4) On or before 31 December 2011, and annually thereafter, every ISP must publish on its Internet site a report on its compliance with this section during the period starting on 1 October in the previous year and ending on 31 September in the year of the report.

  “122R Fees payable by copyright owners to ISPs

  • “(1) An ISP may charge a copyright owner for performing the functions required of ISPs under sections 122A to 122Q.

    “(2) If regulations are made that prescribe a rate or rates, or a method or methods for calculating the rate or rates, that may be charged by an ISP, an ISP must not charge more than the rate or rates prescribed by, or calculated in accordance with, the regulations.”