ISP Liability - Copyright Act 1994 - S92A

As previously reported, the Government appointed a Working Group to assist in the development of legislation to deal with IP liability and to provide a fair and efficient process for copyright holders to deal with repeat online infringers. The Working Group has reported back with its consultation document.

The consultation document has proposed a three-phrase procedure to deal with repeat copyright infringers. At phase 1, a rights holder may  send a first infringement notice to an alleged infringer’s ISP which the ISP must forward on to the alleged copyright infringer. The alleged infringer will have 30 days to respond to the notice either through their ISP or directly to the copyright holder. The copyright holder can then send a cease and desist notice to the alleged infringer and the alleged infringer can either cease to infringe or reject the notice.

At phase 2, a copyright holder, after a first infringement and cease and desist notice has been sent, may apply to the Copyright Tribunal to obtain an order requiring an ISP to provide the current name and contact details of an alleged infringer. Under this procedure, the copyright holder must have reasonable grounds to believe that infringement has occurred, a basis that the alleged infringer is a repeat infringer, reasonable evidence of continued (therefore repeat) infringement based on reasonable enquiries and any other relevant information. Upon being served a Copyright Tribunal order and providing the alleged infringer’s contact details to a copyright holder, the ISP must inform the alleged infringer of the order within a reasonable timeframe. 

At phase 3 the copyright owner can register a complaint against the alleged infringer with the Copyright Tribunal. Under this approach, the dispute may either go to mediation or to the Copyright Tribunal. Possible outcomes from mediation may be that the parties negotiate a licence agreement or a term of use agreement. It is proposed that the Copyright Tribunal is to have the power to order relief by way of damages, injunctions, account of profit or otherwise, or ordering the alleged infringer to pay a fine or an ISP to terminate its account.

The Working Group document is however only a consultation document which posed a series of questions in respect of the above three-phase procedure. The Ministry of Economic Development invited further submission on the Working Group’s proposal and these closed on 7 August 2009. Further announcements are awaited.