New Zealand

On 13 April 2011, the Copyright (Infringing File Sharing) Amendment Bill was approved by the New Zealand Parliament (video here), amending the 1994 Copyright Act. At Third Reading the Government introduced certain amendments, including the pushing back of commencement to 1 September 2011. The final version of the law received assent on 18 April 2011, creating new sections 122A to 122U of the 1994 Act.  

Under the amended Copyright Act, right holders are entitled to require ISPs to notify subscribers of detected infringements. After 3 notices, the right holder is able to bring the subscriber before the Copyright Tribunal, claiming payment of a penalty of up to $NZ 15,000. The system is implemented by the Copyright (Infringing File Sharing) Regulations 2011, which came into force alongside the amendments to the Act on 1 September 2011.

The Act also makes provision enabling the right holder to sue in the District Court for an order requiring the subscriber’s ISP to suspend his Internet access for up to 6 months. However, implementation is to be suspended until the effectiveness of the Copyright Tribunal system has been established. The relevant provisions can be brought into effect by Order in Council.

The New Zealand Copyright Tribunal has summarised on its web site the procedure for the making of claims by copyright holders. The New Zealand Ministry of Justice has produced a helpful chart setting out the system. It has also published the advice of the Attorney General (11 February 2010) that the system is consistent with the New Zealand Bill of Rights Act 1990, in particular sections 14 (freedom of expression) and 27(1) (right to natural justice).

As a result of review in Committee, the Act adopted a more limited definition of file-sharing than that originally proposed. It now applies only to cases where “material is uploaded via, or downloaded from, the Internet using an application or network that enables the simultaneous sharing of material between multiple users; and … uploading and downloading may, but need not, occur at the same time.” This would seem effectively to cover peer-to-peer infringement, but not the rapidly growing problem of cyberlockers, such as Rapidshare or Megaupload. These services, hugely used for piracy, are one-to-one user-server applications. As they do not enable sharing “between” multiple users, they seem to fall outside the definition.

On 29 January 2013, the Copyright Tribunal handed down its first decision under section 122 of the Copyright Act, in respect of three infringements. The Tribunal imposed a penalty of NZ$ 616.57, of which NZ$ 360 represented a deterrent sum. Further decisions are reported from 2013 (18 decisions), 2014 (4 decisions) and 2015 (one decision). However, in September 2015, it was reported that the cost of pursuing infringers using the system was too expensive for music right holders, who had given up bringing cases before the Tribunal.