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A brief summary of the copyright infringement allegation process is included below. More detailed information has been split into the following sections: Note: This information is intended as a guide only, for specific details and applications of the law please refer to the Ministry of Economic Development (MED) or consult a lawyer. The process in brief Copyright rights owners can submit a copyright infringement allegation to an ISP and the ISP is then required to process the allegation and potentially send an infringement notice to the account holder in question. There are three stages of infringement notice under the process; these are: 1. Detection notice 2. Warning notice 3. Enforcement notice Infringement notices can be challenged directly with the rights owner who sent them via your ISP, if you do not challenge a notice it will be considered as a valid infringement. If you have received an enforcement notice, the Act allows a rights owner to take a claim to the Copyright Tribunal. If you are found to have infringed copyright via file sharing, the Copyright Tribunal may make an order of up to $15,000 against you. How it works A rights owner detects the Internet Protocol (IP) address of the infringer and informs the appropriate Internet Service Provider. The Internet Service Provider checks the notice for compliance with the law and regulations, after which they match the IP address to an account to determine the identity of the account holder. The Internet Service Provider will then look at its records to decide if and what type of infringement notice is required and send it to the account holder. Types of notice There are three stages of infringement notice under the process; these are: 1. Detection notice; means a detection notice issued by an IPAP to an account holder in respect of an alleged infringement against a rights owner. 2. Warning notice; means a warning notice issued by an IPAP to an account holder in respect of at least 2 alleged infringements against a rights owner 3. Enforcement notice; means an enforcement notice issued by an IPAP to an account holder in respect of at least 3 alleged infringements against a rights owner. An infringement notice, and progression through the notice types, is specific to each individual rights owner. (E.g. An account holder could get multiple first (Detection) notices at the same time in respect of different rights owners. The account holder could also get a first (Detection) notice from one rights owner even as he or she is getting a second (Warning) or third (Enforcement) notice from another rights owner.) Notices last for 9 months from the date of the detections notice, or, from the expiry of an enforcement notice (whichever is earlier). Challenges Infringement notices can be challenged directly with the rights owner who sent them via your ISP. The challenge will be forwarded to the rights owner, but your contact details will be removed. If a rights owner accepts a challenge, or does not respond, the notice that the challenge relates to will be cancelled. If a rights owner rejects a challenge, the reason for doing so is communicated to the account holder via the Internet Service Provider. You may challenge a notice, or an infringement included in a notice, for any reason. You may consider that copyright infringement has not occurred on your Internet connection, or that you were sent a notice incorrectly. Or, you may consider that you are entitled to use the work under Part 3 of the Copyright Act 1994 (which provides exceptions to copyright), or because the work is not protected by copyright. A challenge must be made within 14 days of the date of the notice that the challenge relates to. Rights owners must also respond to the challenge (either accepting or rejecting it) via the ISP within 28 days of the notice. Enforcement If you have received an enforcement notice, the Act allows a rights owner to take a claim to the Copyright Tribunal. If you are found to have infringed copyright via file sharing, the Copyright Tribunal may make an order of up to $15,000 against you. If you consider that alleged infringements in a notice did not occur, or that the information a notice is incorrect, you must give the Tribunal reasons why you think this is so. If you do not, the Tribunal will consider that the infringements have occurred. In this situation they are likely to make an award against you. Time periods Infringement Notices The rights owner informs the Internet Service provider of an alleged copyright infringement. The infringing act needs to have been in the prior 21 days. The Internet Service Provider has a maximum of 7 days to process the information and issue an infringement notice to the account holder. Copyright infringements for 28 days after the date of a Detection or Warning notice, called the on-notice period do not result in further infringement notices. They are however included in any further notices and used by the Copyright Tribunal in determining the penalty payable to the rights owner. Enforcement Notice Once an Enforcement notice is issued, there is a quarantine period of 35 days when copyright infringements are not counted for the current notices cycle. At the end of the quarantine period, all notices (detection, warning, & enforcement) expire. At the same time, the notices cycle can start all over again. Challenges A challenge must be made within 14 days of the date of the notice that the challenge relates to. Rights owners must also respond to the challenge (either accepting or rejecting it) via the ISP within 28 days of the notice. More information For more information please take a look at the following resources: Ministry of Economic Development (MED) http://www.med.govt.nz/templates/StandardSummary____46206.aspx Telecommunications Carriers Forum (TCF) http://www.tcf.org.nz/content/d543212c-ab29-42dc-8fa5-de14710785f6.html InternetNZ http://3strikes.net.nz/ http://internetnz.net.nz/ |
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