RIANZ & IMNZ Submission on Copyright Bill

[Full submission: copyrightsubs2306.pdf]

COPYRIGHT (INFRINGING FILE SHARING) AMENDMENT BILL (“The Bill”)

SUBMISSIONS BY

RECORDING INDUSTRY ASSOCIATION OF NEW ZEALAND (RIANZ)

AND

INDEPENDENT MUSIC NZ (IMNZ)

23 June 2010

EXECUTIVE SUMMARY

The key issues covered in these submissions are::

(1) Introduction

RIANZ represents 60 major and independent record companies, over 1000 imprint labels and more than 1100 New Zealand recording artists and producers and over 95% of commercially released recorded music in NZ.

IMNZ represents 83 record labels, all of which are 100% NZ owned, and 85% of NZ recorded music.

(paras 1 – 4)

(2) Need for the Bill

Online copyright infringement has had and continues to have a significant negative effect on New Zealand’s music, film, television, software and other creative industries. For example, in the period between 2004 and 2009 the combined value of all albums and tracks sold by New Zealand artists has almost halved.

The current high costs that a copyright owner faces when bringing proceedings against illegal downloaders for infringement through the Courts means that it is uneconomic to effectively pursue and reduce illegal peer-topeer file sharing.

The Bill proposes an efficient, low-cost and credible regime to deter individuals from infringing copyright. RIANZ and IMNZ however propose some modest amendments to the current Bill to ensure that it meets its aims to ensure that the measures, procedures and the remedies to reduce illegal peer-to-peer file sharing are effective and dissuasive.

(paras 5 – 24)

(3) Temporary internet account suspension

Various international studies have shown that a graduated response mechanism combined with the threat of account suspension is the most effective way to reduce repeated online infringement of copyright. These studies have shown that effective sanctions, and in particular account suspension, are critical to achieve meaningful deterrence.

The power of a District Court to suspend an account holder’s internet account for up to six months is a justified and proportionate remedy as compared to the current alternatives, as well as to the impact that illegal file sharing has on copyright owners, the New Zealand economy and New Zealand’s relationship with other countries.

(paras 25 – 45)

(4) The International Context

A graduated response mechanism with deterrent sanctions similar to that proposed in the Bill has been proposed or implemented in a number of countries. The current Bill is in line with this international evolving best practice approach.

(paras 46 – 54)

(5) Scope of these submissions with reference to the Bill

(A) Qualifying incidents of infringement: Notifications to Internet Service Providers (“ISPs”) from all copyright owners should count towards the graduated response process, not just infringements relating to one particular copyright owner.

This is to ensure that the Bill can be effective, especially for New Zealand copyright owners, and so that it is consistent with the graduated response mechanisms used overseas.

The Bill should also make clear that the definition of “copyright owner” includes both the copyright owner and his authorised agent.

(paras 58 – 84)

(B) Fees payable to ISPs: Each party should bear its own costs and rightholders should not be expected to pay fees to ISPs for complying with their obligations under the law. Notwithstanding, if such fees are charged, regulations should be put in place to limit maximum rates.

(paras 85 – 103)

(C) Challenging infringement notices: Section 122G should be amended to ensure that challenges to infringement notices go to an independent person authorised by the Copyright Tribunal.

This is to ensure that the graduated response mechanism set out under the Bill retains integrity for all parties involved. Furthermore, the grounds upon which a challenge can be brought by an account holder should be expressly defined.

(paras 104 - 112)

(D) Infringements detected while a challenge is pending: New infringements detected while a challenge to an infringement notice is pending should count towards the process.

(paras 113 – 116)

(E) Content of infringement notices: Infringement notices should include an educational element providing information about copyright, legitimate alternatives, and how to secure a wireless account.

(paras 117 – 122)

(F) Time frames regarding ISP obligations: ISPs should notify copyright owners immediately of issued enforcement notices.

(paras 123 – 125)

(G) IP address matching: ISPs should be required to match IP addresses to every reported infringement.

(paras 126 – 131)

(H) Copyright Tribunal rules: The process should be expeditious and cost-efficient. The Tribunal should therefore only allow oral hearings where it considers that it is appropriate.

The Tribunal should also have the power to order full reimbursement of any ISP fees paid by copyright owners.

The Tribunal should also retain a discretion to increase the amount payable by an account holder to include a deterrent to further infringing activities or where the infringing activity by the account holder warrants such an increase.

(paras 132 – 141)

(I) District Court rules: To ensure that the Bill provides an efficient, lowcost and credible regime, it is suggested that an application by a copyright owner to suspend an internet account be brought by way of an originating application. If the application to suspend an account has to be brought by way of ordinary proceedings in the District Court, there would be no advantage at all to the copyright owner to proceed under the regime prescribed by the Bill.

(paras 142 – 147)

These issues of concern are explained below in more detail, including suggested amendments to the Bill’s current provisions.

[Read the full submission: copyrightsubs2306.pdf]

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