Copyright (Infringing File Sharing) Amendment Bill

First published in Inside Tourism, Issue 779, 1 April 2010

For many accommodation and other tourism service providers, facilities which give their customers private and direct access to the net are simply part of the service.  Up until now these businesses have not needed to concern themselves too much about what their customers may be up to when using these services but this is about to change.

A bill repealing section 92A of the Copyright Act was introduced to Parliament in February.  The bill is intended to put in place a fair and balanced process to deal with online copyright infringement by unauthorised file sharing.  It replaces a scheme which was delayed thanks to a barrage of criticism fearful that that scheme could have resulted in many unwarranted disconnections from the net.

The bill sets out a three notice process which first seeks to educate the offender on illegal file sharing and, if that fails, to provide a system under which copyright owners can enforce their rights.

The new system is a compromise designed to reduce the need for drastic steps damaging business. However, large employers and operators of facilities giving public access to the internet, such as accommodation providers and i-sites, need to remember that the ultimate sanction of disconnection of their ISP account is still available.

Under the new regime the copyright owner may request the internet service provider to give an alleged infringing account owner a notice to stop infringing.  This first notice informs the account owner that an infringing activity has occurred and that it is illegal.  A second and third notice may be sent if the account holder ignores these notices and continues infringing.

After issuing the third notice the copyright holder can seek reparation of up to $15,000 from the copyright tribunal.  They can also take court action to have the ISP account holder disconnected for up to six months.

Account holders will have the right to challenge any notice and to make submissions on whether they have infringed the copyright and any penalty.

The bill includes a clear exclusion of all liability for the ISPs provided they follow the procedures required of them.  However, providers of internet access to the public such as accommodation providers and i-sites have been clearly excluded from this exception.  These parties not only risk disconnection but also liability for the infringement itself.

This bill is a second attempt to deal with this issue and is the result of considerable consultation.  A scheme along these lines is therefore likely.

All businesses should review their employment policies to ensure that they are in a position to prevent any further infringement by an employee after the first notice.  Accommodation providers and other businesses which provide internet access to their customers should also review their policies and processes with a view to reducing the chances of their customers indulging in illegal file sharing while using these services.

When considering an application for disconnection the court will be required to take all factors into account, including the impact of the disconnection on any business.  A business operating policies and practices designed to reduce illegal file sharing to the absolute minimum will not only have a much better chance of avoiding being the subject of any complaint in the first place but also improve its chances of avoiding disconnection should things go wrong.

For more information, please contact:

John Ferner
Partner
t: +64 9 979 2153
e: John Ferner

Last updated: April 2010

The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.