REPLACEMENT TO SECTION 92A – Definition Section and Regulation

Section 92A     Deleted

Insert instead:

Establishment of Complaints Division of Copyright Tribunal

Section 92A

1. A Complaints Division of the Copyright Tribunal is to be established to have jurisdiction to resolve any disputes arising under this section of this Act.
2. Copyright owners, ISP's and Account Holders must comply with any procedure set down under regulation made under this section.

Section 92AA

1. An ISP will not be liable for breach of copyright provided it complies with the regulations made under section 92A of this Act.

Interpretation- the following definitions will apply to ss92A and 92AA:

Copyright Tribunal – Complaints Division: A branch of the Copyright Tribunal as established under ss [...] of this Act. There will be two divisions of the Complaints Panel – Division 1 consisting of appointees with a technical background to resolve disputes around correct identification of the account on which the breach is alleged to have occurred and Division 2 consisting of appointees with a Copyright law background to resolve legal issues of Copyright breach.

Copyright Notice – A copyright notice is a notice provided by a copyright holder to an ISP complaining of a breach of copyright occurring by a party who has an account with that ISP. To be valid under the Act, a Copyright Notice must contain the information set out in regulations made under this Act.

Counter Notice – A counter notice is a notice given by an account holder to its ISP, in response to a notice setting out in detail the dispute with the rights holder, and why the account holder alleges the notice is not valid. To be valid under the Act, a Counter Notice must contain the information set out in regulations made under this Act.

ISP – we need help with this definition. The current one is too wide – but perhaps that’s not something we can tackle with this exercise? Found it becomes nonsensical to limit it – because people’s access to the web is sometimes a long chain of contracts

CSP – Carriage internet services provider (term from Australian law meaning conventional ISP, to be refined).

Regulations – The Copyright Tribunal – Complaints Division Regulations.

These Regulations are made under the Digital Copyright Act 2008 and set out the procedure upon which the Copyright Tribunal – Complaints Division can notify ISP’s of repeat copyright infringement under s92A of that Act.

A copyright owner may forward a Copyright Notice as defined in the Act to an ISP if it believes, on reasonable grounds, that an account holder of that ISP has breached copyright owned by that copyright owner.

Upon receiving a notice, an ISP must forward the notice to the account holder at its address for contact along with the following information;

• The effect of the notice being received;
• Its right to dispute by providing a counter notice;
• What the possible grounds of dispute are; and
• An outline of the dispute resolution process set out under this regulation.

In the event the ISP is not also a CSP, and the ISP does not have the available technology to identify the account holder, the ISP must notify the Copyright owner immediately. The Copyright owner may choose to require the ISP to have an independent expert investigate the ISP's system to attempt to identify the account holder. The Copyright Owner will be responsible for the independent expert's reasonable costs, and any hardware or materials costs incurred by the independent expert. The ISP will be responsible for any internal costs for management or employees to liaise with the independent expert.

To be valid under this Act a Copyright Notice must contain;

• The IP address of the account holder;
• The date and time of the alleged breach of copyright;
• The nature of the alleged breach of copyright;
• An assertion of copyright ownership; and
• The allegation must be confirmed by statutory declaration under the Oaths and Declarations Act.

If an Account Holder disputes that it has breached any copyright of the Copyright Owner, it may send a Counter Notice to its ISP.

A counter notice must contain;

Either

A statement that the account holder was not responsible for the material published to the internet (i.e. allege that the rights holder has not got correct IP address) (Defence 1);

or

A statement that the account holder was responsible for content but the content does not breach the rights holder’s copyright (Defence 2).

The ISP must immediately forward any counter notice received to the Copyright Owner.

Where a Copyright owner receives a counter notice from an account holder, the copyright owner may refer the matter to the Copyright Tribunal – complaints panel. If a copyright owner elects to do this, the Copyright owner waives any right for the breach of copyright complained of in the Copyright Notice to be dealt with by any other court, and the decision of the Copyright Tribunal shall be a binding and final decision in relation to that alleged breach of Copyright.

Where the account holder relies on Defence 1 in its Counter Notice, the dispute will be referred to branch 1 of the Copyright Tribunal.

Where the account holder relies on Defence 2 in its Counter Notice, the dispute will be referred to branch 2 of the Copyright Tribunal.

To commence the dispute resolution process, a copyright holder must file with the Tribunal the following;

• The copyright notice originally forwarded to the ISP;
• Any supporting evidence/data (in written and/or electronic form); and
• A filing fee set down for the time being in regulation under this Act.

The Copyright Owner must file the above material within four (4) weeks of receiving the counter notice from the ISP. This time period cannot be extended in any way by the Copyright Tribunal. At the time of filing the materials set out in the paragraph above, the Copyright Owner must also provide identical material to the ISP, and the ISP must immediately send the material to the same address that the original copyright notice was sent.

Within 20 working days of the filing date, the account holder must file its original counter notice and any supporting evidence and data whether in written or electronic form. The Tribunal will forward a copy of all material filed to the Copyright Owner.

The Tribunal adjudicator will, at any time from the time of first filing, up to two (2) weeks after the date the account holder files its counter notice, ask any questions of either party to enable the tribunal to refine the dispute, and give a reasonable time for either party to answer those questions.

Where the Tribunal adjudicator has asked any questions under paragraph [enter number] above, both parties will have one (1) week to make any further comment or reply.

The Copyright Tribunal will make a decision within 20 working days whether or not the Account Holder breached the Copyright of the Copyright Owner. If the Copyright Tribunal determines there has been a breach of the Copyright Owner's Copyright by the account holder, the Copyright Tribunal may;

• order that the account holder pay a fine of not more than $1,000. (This fine or part of it, may be paid to the Copyright Owner at the Copyright Tribunal's discretion).

The Copyright Tribunal must advise the ISP of its decision within 3 working days.

The decision of the Copyright Tribunal is not subject to appeal except on the basis that the above procedure has not been followed.

The decision of the Copyright Tribunal as to whether or not the account holder is in breach of copyright is not binding on any other court for the purposes of any injunction hearing or application for damages or accounts of profit. The information provided to the Copyright Tribunal under this procedure is considered privileged from disclosure in any other court or arbitral proceedings, unless the party disclosing the information waives that privilege.

The Copyright Tribunal will have the discretion to award costs in the event copyright is not upheld, but costs awarded will in no circumstances be higher than $1,000.

If a Copyright Notice is sent to an ISP by a Copyright Owner, and there is no counter—notice filed by the Account Holder within the time specified in these regulations, the account holder is deemed to have breached copyright (deemed breach). The account holder will have a right to appeal this deemed breach by filing a notice of appeal with the Copyright Tribunal, if the account holder can demonstrate on reasonable grounds;

• That it never received the copyright notices; and
• It has an arguable defence.

An appeal under this section will be referred to the Copyright Tribunal to determine, and if it is upheld, the Copyright Tribunal will proceed as if a counter-statement had been filed in time.

Any Copyright Notice forwarded to any ISP will not count as a Copyright Notice under these regulations once a period of 18 months has passed without any further Copyright Notices being forwarded to the ISP in respect of that account holder.