Skynet: The Kiwi Solution to Online Piracy

Tuesday 19 March 2013 @ 10.27 a.m. | IP & Media

In a recent post The Converation states that: "We know online piracy exists; we know governments want to stop it – but what are the options?"

One option is the regime introduced by the Copyright (Infringing File Sharing) Amendment Act in New Zealand which has been supported by some as the model to follow in Australia.

Trends

In Australia the scheme along with developments in the US and Europe is being watched with interest, for example, in a recent speech (delvered at ASTRA on 14 March 2013) Richard Freudenstein, CEO of Foxtel (see link to full text in The Conversation) said:

" [Regarding online piracy] But more needs to be done. It is time for Internet Service Providers (ISPs) and government to act to protect intellectual property. We need to have an appropriate system in place before the NBN is rolled out in whatever form that happens because with superfast broadband the floodgates could really open.

In the US a new co-operative system between content owners and ISPs has just come into force, the[ir] regimes in the UK, in Europe, South Korea and New Zealand. The models are there but Australia is lacking behind. It is time something was done. We will be calling on both the government and Opposition to develop policies that protect copyright owners and ensure the viability of content creation industries."

Mechanics

The New Zealand scheme operates under a three-strikes system and started in 2011 under the Copyright (Infringing File Sharing) Amendment Act. The legislation requires  ISPs to issue infringement notices to their internet account holders when content owners (called "rights holders") allege that file-sharing activity is being undertaken by the end users of an ISP.

The New Zealeand scheme takes a guilty until proven innocent approach where the allegations of a rights holder are considered to be sufficient evidence of infringement and it is up to the account holder to disprove the claim. More onerous is the fact that no matter who carried out the infringing behaviour, account holders are held solely responsible for infringements (thus negating defence arguments such as children using their parents accounts, neighbours stealing Wi-Fi and small businesses providing internet hotspots).

The three strikes in the scheme are:

  • A detection notice: The first infringement notice issued by an ISP to an account holder.

  • Second detection notice: If the file-sharing activity continues beyond 28 days from the date of the detection notice, the ISP is then obliged to issue a more sever warning notice.

  • Enforcement notice: This notice is issued where a rights holder allegea file-sharing activity has continued for a further 28 days. Once this notice has been issued, the rights holder is provided with a copy of the enforcement notice. That notice must not contain the name or contact details of the account holder. The rights holder is then entitled to have the matter heard before the New Zealand Copyright Tribunal.

Operation

The system has taken a long time to get up and running in New Zealand and has to date yield only very minor outcomes for right holders taking action in New Zealand, for example in a case decide in January 2013 the outcome was that an offender was fined $616 in a case where Recording Industry Association NZ (RIANZ) had sought major penalties.

To quote a report of that case:

"The Recording Industry Association (RIANZ), which represents big record labels, says an offender has been fined $616 in the landmark music piracy case. ... It is disappointing some account holders do not take meaningful action when first advised their connection was being used to flout the law."

Ahead in Australia

The Conversation reports that in Australia negotiations have taken place between government and industry for similar systems to be developed, but have fallen apart after the major ISP's withdrew from the talks: "citing concerns that the entertainment industry was only attempting to force ISPs to act as the police to enforce a broken system – one which fails to meet the demands of consumers".

Sources

 

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