Simpsons Solicitors

Three strikes – and struck!

February 11th 2013

In 2011, New Zealand introduced controversial new laws relating to copyright infringements through online file sharing.

In a nutshell, copyright owners who have sent a Detection Notice of infringing activity to an online user, followed by a Warning Notice and an Enforcement Notice if the activity continues, can take action in the courts (to have the account suspended for up to 6 months), or in the New Zealand Copyright Tribunal (which can order payments to copyright owners of up to NZ$15,000).

The Tribunal has now handed down its decision in the first of a number of cases brought under the new provisions by the Record Industry Association of New Zealand (RIANZ) in late 2012 against individuals. Interestingly, the Tribunal noted that this decision was probably “slightly more detailed” than would usually be the case in relation to such proceedings. This being the first such decision, the Tribunal noted that it was looking to strike a balance between “addressing all of the issues comprehensively, and keeping its decision short and simple”.

The Tribunal reviewed the facts and found that, on the basis of the information available to it (together with the statutory presumption that each incident identified in a notice sent on behalf of a copyright owner constitutes an infringement), the alleged file-sharing had taken place.

The Tribunal then discussed the various bases on which it could order payment to the copyright owner(s) – in this case awarding RIANZ a sum totalling $616.67. This sum was made up from the following amounts: $6.57 by way of compensation for the two songs that were downloaded without a licence; $50 to cover the cost RIANZ had incurred from having the infringer’s ISP send the notices; $200 re-imbursement for RIANZ’s application fee to the Tribunal; and a deterrent sum of $360.

It appears from the case that the Tribunal is well aware of its role in giving copyright owners a relatively quick, cheap and effective means of addressing the very serious issue of online file-sharing – and we are aware of some reports to the effect that online file-sharing in New Zealand has dropped markedly. Only time will tell whether this drop is permanent.

Internationally, “3-strikes” approaches are controversial, and it is not at all clear that Australia would follow the New Zealand lead here.

For information on protecting your copyright, contact copyright lawyer, Adam Simpson or Ian McDonald (Special Counsel, Simpsons) at Simpsons Solicitors.

The Tribunal’s judgment in the case is available at http://www.nzlii.org/nz/cases/NZCopyT/2013/1.html.