What You Need to Know About Notices And The Copyright Tribunal
Under the Copyright Act, if a copyright holder detects that an IP Address (an identifier used by internet accounts) is illegally sharing their copyrighted content, they can require the relevant Internet Service Provider (ISP) to send a notice to the holder of that account under the ‘Graduated Response’ programme. At no point is the copyright holder provided with any of the personal details of the account holder. Here’s what you need to know about each of the notices you could receive.
This notice is to inform you that your internet account has been detected illegally sharing copyrighted files. At this point you don’t have to do anything – apart from making sure that any such activity stops and infringing files are removed/no longer shared. Tips on how to make sure you’re not at risk of receiving any further notices can be found on our Staying Legal Online page.
Any infringement detected within 28 days of receiving this notice will not result in a further notice. Receiving this notice starts a 9-month period in which any further detected infringement will result in you being sent the next notice in sequence. If no further infringement is detected in this period, you will be put back to scratch – any infringement detected after that point will mean a new detection notice, not an infringement or enforcement notice.
If you receive a detection notice in error, you can challenge it within 14 days of receipt. You are entitled to challenge the notice on the basis that:
- No infringing occurred through your account.
- You were sent the notice incorrectly.
- You have a defence available under the Copyright Act .
- The work in question is not copyrighted.
If the copyright holder does not respond to your challenge within 28 days, the notice will be cancelled. If the challenge is rejected, the notice will remain live but the challenge may be brought up if the situation progresses to the Copyright Tribunal.
If your account is detected infringing material belonging to the same copyright holder after the 28 day ‘on notice’ period has ended and the earlier warning notice has gone unchallenged, this will result in an Infringement Notice being sent. This will take the same form as the detection notice, and has another 28 day notice period and challenge procedure. This provides another opportunity to make sure that you have stopped any infringement occurring through your internet account.
Finally, if infringement is detected once more after the end of the second notice period, a third and final Enforcement Notice will be sent. At this point, there is a 35 day period in which to challenge the notice. If no challenge is made (or the challenge is rejected), the copyright holder may choose to refer the issue to the Copyright Tribunal. If they do not choose to do so within the 35 days, the process will reset from the beginning.
The Copyright Tribunal normally considers applications related to infringing file-sharing ‘on the papers’ – that is, the Tribunal makes its decisions based on the written submissions it receives from the parties. Either party may, however, request a hearing – or the Tribunal may decide that a hearing is necessary. At a hearing, every party may appear personally to be heard before a decision is made. Except for in certain situations, the parties will not normally be represented.
The Tribunal has the power to order an internet account holder to pay the relevant rights holder:
- for each infringement committed against the rights holder.
- a contribution toward the fees paid by the rights holder to send the preceding notices.
- the cost of the application fee paid by the rights holder to the Tribunal.
- an amount that the tribunal considers appropriate as a deterrent.
The total amount that an account holder may be ordered to pay cannot exceed $15,000. To date, each of the 17 applications decided by the Copyright Tribunal has resulted in an order for payment to the rights holder. These payments have averaged $510, with the highest payment ordered so far set at $914.35.
For more information about the Copyright Tribunal’s role in dealing with file-sharing, visit www.justice.govt.nz/tribunals/copyright-tribunal/file-sharing-infringements.