New Zealand revisits anti-piracy law

Illegal downloaders face fines, account termination

AUCKLAND, New Zealand -- Serial copyright offenders in New Zealand could still have their accounts terminated under revised legislation -- but only after a lengthy process involving both mediation and an independent tribunal.

The government on Tuesday unveiled its revised version of the controversial Section 92A clause of the Copyright Act, which would have provided the world's first "three strikes" legislation. Implementation of the clause was postponed following a high profile scare-mongering campaign.

The new version -- drawn up by a working party comprising intellectual property and Internet law experts, plus officials from the Ministry of Economic Development -- provides for a three-phase process to deal with repeat offenders.

In the first instance, a rights-holder will lodge a complaint with an ISP, which would then notify the alleged offender. If there is further infringement, a cease-and-desist order would then be issued.

If the offense continues, then the content owner can apply to the Copyright Tribunal for an order to obtain the offender's name and contact details, and then serve an official infringement notice.

However, the alleged offender will have the option of electing for independent mediation and a tribunal hearing will only be convened if that fails. The tribunal will have the option to impose a range penalties from fines to the termination of a user's account.

Commerce minister Simon Power believes the revised clause will result in a law that is clear, sensible and fair to everyone. "We need to provide a fair and efficient process to address repeat copyright offending," he says. "Unlawful file-sharing is very costly to New Zealand's creative industries and I am determined to deal with it."

Anthony Healey, director of NZ operations at the Australasian Performing Right Assn., gave the revised Section 92A a cautious thumbs up and believes that the issuing of warning letters would help deter many illegal downloaders.

"From our perspective, what is encouraging is that it focuses on the role ISPs need to play in solving to this problem," he adds. "We hope that once they realize that they can't get away with doing simply nothing, that will lead us to better licensing opportunities."

However, he says more detail will be needed on the role of the Copyright Tribunal and whether it will have the resources to deal with the extra workload. At present, the tribunal comprises only three people, all of whom have other jobs and responsibilities; in fact the case currently being heard by the tribunal -- a dispute between the Phonographic Performances New Zealand and the Radio Broadcasters Association -- is the first hearing since 2005.