New Zealand Revives “Three-Strikes” Plan

New Zealand government has decided to give “three-strikes” legislation another try. This time, however, it wants its Copyright Tribunal to handle the illegal file sharers.

While a few months ago, public protests led to what seemed then an abandonment of the “three-strikes” policy, the latest news tell about a busy government that has been working on a plan to bring that law back on track. And the plan was finally made public but in case you wonder what changes were operated to the initial plan, well, don’t expect too much. The new revised law tackles “guilt upon accusation” concerns – if formerly the ISPs and copyright owners were left to “solve” the copyright violation matter and point their fingers at those they considered guilty of infringement, now that job is assigned to the Copyright Tribunal.

Here’s how the newly revised Section 92a of the Copyright Act looks like (read the whole document here – PDF) :

The proposed policy is intended to provide the basis for a revised section
92A. The proposed procedure will provide RHs with a course of action to
pursue repeat online copyright infringers as an alternative to filing
proceedings in the High Court. It is intended that the Copyright Tribunal will
have exclusive jurisdiction over matters covered by section 92A, unless
proceedings commence or have commenced in the courts.

The Proposed Approach: Summary
Phase 1- First Infringement and Cease and Desist Notice Procedure
Where a RH considers on reasonable grounds that there has been online
copyright infringement of one or more of its works, RHs may invoke the
section s92A procedure by sending a first infringement notice to an ISP. The
notice will contain sufficient details to allow the ISP to identify the subscriber
908455 – 906598
concerned. This notice must then be forwarded by the ISP to the subscriber.
If there is further copyright infringement by that subscriber, a RH may send,
via the ISP, a cease and desist notice. The subscriber will have an opportunity
to reply to either notice by way of a response notice directly to the RH with
their name and contact details attached. Upon receiving a response notice, a
RH will be required to accept or reject it and inform the subscriber
accordingly.

Phase 2- Obtain Copyright Tribunal Order
Where a RH considers on reasonable grounds that there has been further
(repeat) copyright infringement by a particular subscriber after a cease and
desist notice has been sent, and the subscriber concerned has been provided
with an opportunity to respond by way of a response notice, a RH may apply
to the Copyright Tribunal to obtain an order requiring the ISP to provide the
name and contact details of the alleged copyright infringer (the subscriber).

Phase 3- Copyright Tribunal
A RH may then register an infringement complaint with the Copyright Tribunal
which will ensure that the infringement complaint complies with requirements
in statute/regulation. A RH may then notify the subscriber that an allegation of
repeat copyright infringement has been lodged against them. The subscriber
will have an opportunity to respond to the allegation and to elect to proceed to
mediation. The Copyright Tribunal will be convened unless agreed otherwise.
The Copyright Tribunal, in addition to available relief by way of damages,
injunctions, account of profits or otherwise, may consider ordering a
subscriber to pay a fine or an ISP to terminate the subscriber’s internet
account.