Wednesday 1:20pm (16th December 2009)
Minister Simon Power releases revamped Section 92A for review..Minister Simon Power has released the design for revamped s92A a few minutes ago. The press release reads: "The Cabinet Paper that outlines the basis of new legislation, which will be introduced to Parliament early next year. This follows a review of section 92A of the Copyright Act 1994.
The new process is summarised as...
Right holders will be able to request that internet service providers (ISPs) give alleged infringers notice to stop infringing activity.
The first notice will inform the account holder that infringing has occurred and is illegal. Two further notices may be sent.
If infringing continues after three notices, the right holder may seek a penalty of up to $ 15,000 at the Copyright Tribunal. The amount will be based on the damage to the copyright owner.
Where serious and continued breaches occur, right holders will be able to go to court to seek a range of remedies, including the suspension of accounts for up to six months.
Account holders will be able to issue counter notices, and can request a hearing if they feel they should not be penalised.
Summary
Further analysis to come but these are the main points.- People are innocent until proven guilty either by the Copyright Tribunal or the courts.
- Termination can only be ordered by the courts, not the Copyright Tribunal
- No special sanctions on right holders for false or malicious allegations.
- Penalties of up to $15,000 may be awarded by the Copyright Tribunal. This is in keeping with the maximum of the Disputes Tribunal
- The courts have existing maximum fines that are already established under the Copyright Act.
- New definition for ISP that is less broad and excludes organisations such as businesses and universities. Too early to tell what this means for shared connections such as internet cafes, open WiFi, etc.
- It says "right holders will pay a fee per notice" although as regulations not set might be premature to read too much into that. This is as opposed to a process that allowed many notices on a flat-rate for rights-holders.
- No resolution to the overlap with s92C disputes. As outlined in our submission s92C lacks a counternotice procedure and due process. Further due to technology changes there may be no functional difference between an s92C or s92A dispute.
- Privacy is maintained by anonymizing details until a verdict is reached by the tribunal.
- The wording in the press release is a bit odd in that it mixes up alleged infringement with actual copyright infringement. We assume this is just a poor choice of language.
- A copy of the cabinet paper is available from the MED website
