Copyright (Infringing File Sharing) Amendment Bill 2010

As was foreshadowed in the August 2010 edition of IP Forum, the Commerce Select Committee has now reported back on the Copyright (Infringing File Sharing) Amendment Bill (“the Bill”).

The Select Committee Report and accompanying amendments to the Bill retained the 3-tiered system of notices from ISPs (renamed in the Bill “IPAP” i.e. Internet Protocol Address Provider) to their account holders. This graduated response mechanism is the same as detailed in the August 2010 IP Forum.

Significant amendments were however made to the Bill by the Select Committee including:

(a)   Most prominently, the Select Committee has delayed the implementation of the power of the District Court for suspending an account holder’s Internet account for repeated copyright infringement. The Select Committee introduced a new clause 122PA which states that no order for account suspension can be made until the Governor General has, by order in council, permitted that such suspension orders can be made.

The Select Committee indicated that if the notices and compliance mechanism failed to have a deterrent effect, then the suspension provision could be introduced. The Select Committee observed that its approach was in line with that adopted in the United Kingdom.

(b)   The incorporation of agents into the definition of “rights owners”. This is in order to allow copyright owners to designate a representative to bring actions and file notices to ISPs on their behalf;

(c)   The process for challenging infringement notices provided in clause 122G was amended. Formerly, the Bill provided that ISPs would be responsible for reviewing and determining challenges to infringement notices by account holders. The amended clause now provides that all challenges are to be immediately sent to rights owners from the ISP. It would now be up to the rights owners whether to accept a challenge or not. A rejected challenge can however be raised by the account holder at any subsequent enforcement proceeding such as at the Copyright Tribunal or District Court;

(d)   Illegal downloading over mobile phones would be included as part of the Bill’s graduated response mechanism.

The Select Committee in its report expressed an expectation that the regulations which will stipulate how awards under s122N are to be made, would include a punitive element as opposed to being purely compensatory based. This is in order for the remedy to be an effective deterrent for illegal file sharing;

The Select Committee also retained clause 122R which allows ISPs to charge rights owners for issuing infringement notices. The Select Committee did state that any fees charged by ISPs to be on a cost-recovery basis only.

The Bill currently awaits its second reading.