Copyright (Infringing File Sharing) Regulations 2011

2011/252

Coat of Arms of New Zealand

Copyright (Infringing File Sharing) Regulations 2011

Anand Satyanand, Governor-General

Order in Council

At Wellington this 18th day of July 2011

Present:
His Excellency the Governor-General in Council

Pursuant to section 234 of the Copyright Act 1994, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following regulations.

Regulations

1  Title
  • These regulations are the Copyright (Infringing File Sharing) Regulations 2011.

2  Commencement
  • These regulations come into force on 1 September 2011.

3  Interpretation
  • (1) In these regulations, unless the context otherwise requires,—

    Act means the Copyright Act 1994

    challenge notice means a notice, in the form prescribed in the Schedule, to be used by account holders to challenge an infringement notice

    response notice means a notice sent by a rights owner, via an IPAP, to an account holder in response to a challenge by the account holder to an infringement notice

    rights owner notice means a notice, referred to in section 122C of the Act, that—

    • (a) is provided by a rights owner to an IPAP; and

    • (b) sets out all the alleged infringements against the copyright of the rights owner that occurred at a single IP address during a single day.

    (2) Terms that are defined in section 122A of the Act and that are used, but not defined, in these regulations have the meanings given to them by section 122A of the Act.

Notices

4  Rights owner notices
  • (1) Every rights owner notice provided to an IPAP must include the following information about the rights owner who provides the notice:

    • (a) the rights owner's name:

    • (b) the rights owner's contact details, which must include an email address, telephone number, and physical address:

    • (c) if the rights owner does not have a physical address in New Zealand, an address in New Zealand to which the IPAP can send documents for the rights owner:

    • (d) if the rights owner is acting as an agent for a person whose copyright is alleged to have been infringed, evidence of the rights owner's authority to act as agent for that person.

    (2) Every rights owner notice provided to an IPAP must—

    • (a) identify the IP address at which the infringements are alleged to have occurred; and

    • (b) state the date on which the infringements are alleged to have occurred at that IP address; and

    • (c) in relation to each copyright work in which copyright is alleged to have been infringed,—

      • (i) give the name of the owner of copyright in the work; and

      • (ii) give the name of the work, along with any unique identifiers by which it can be identified; and

      • (iii) describe the type of work it is (in terms of section 14(1) of the Act); and

      • (iv) describe the restricted act or acts (in terms of section 16(1) of the Act) by which copyright in the work is alleged to have been infringed; and

      • (v) give the New Zealand date and time when the alleged infringement occurred or commenced, which must specify the hour, minute, and second; and

      • (vi) identify the file sharing application or network used in the alleged infringement.

    (3) Every rights owner notice must include a statement that, to the best of the rights owner's knowledge, the information provided in the rights owner notice is true and correct; and that statement must be verified by a signature (physical or digital) of the rights owner or a person authorised to sign on behalf of the rights owner.

    (4) If a rights owner sends a series of rights owner notices to an IPAP that relate to alleged infringements occurring at different IP addresses, the rights owner need only make the statement referred to in subclause (3) once in relation to all those notices, as long as it is clear which notices the statement relates to.

    (5) If an IPAP specifies a process by which rights owners can provide rights owner notices to the IPAP, then as long as that process is consistent with the Act and these regulations, rights owners must comply with the process specified by the IPAP, unless otherwise agreed by the IPAP.

    (6) An IPAP may ignore, for the purposes of its obligations under section 122C of the Act, any IP addresses identified in a rights owner notice that are not IP addresses that the IPAP allocates, or allocated at the relevant time, and the IPAP is not required (despite section 122T(2)(a) of the Act) to retain any information relating to those IP addresses.

5  Infringement notices
  • (1) Every infringement notice sent to an account holder concerning an alleged infringement must, in addition to complying with the requirements of sections 122C to 122F of the Act, set out or include the following:

    • (a) in relation to each alleged infringement identified in the notice, all the details specified in regulation 4(2):

    • (b) an infringement notice number:

    • (c) contact details of the IPAP that sends the notice:

    • (d) a challenge notice form, or a link to a challenge notice form, that the account holder must use if he or she wishes to challenge the infringement notice:

    • (e) a link to, or a description of how to access, information on an Internet site of the Ministry of Economic Development that sets out information about the infringing file sharing regime, account holders' rights and obligations, and any other matters that the Ministry of Economic Development considers useful to account holders.

    (2) Every infringement notice number must comprise a series of numbers, letters, or both that—

    • (a) is unique to that notice; and

    • (b) indicates whether the notice is a detection notice, a warning notice, or an enforcement notice; and

    • (c) identifies the IPAP that sent the notice.

    (3) If an infringement notice is sent to an account holder in paper form, the notice must include paper copies of the challenge notice and all the information referred to in subclause (1)(e).

6  Challenge notices
  • (1) Every challenge by an account holder against an infringement notice must be in form 1 as set out in the Schedule.

    (2) When an IPAP sends a infringement notice to an account holder that includes a challenge notice form, the IPAP must customise the form for the account holder to whom it is sent by completing the following details on the form:

    • (a) the name of the IPAP:

    • (b) the name of the account holder:

    • (c) the relevant infringement notice number:

    • (d) the date of the relevant infringement notice.

Fees payable by rights owners

7  Maximum fee that IPAPs may charge rights owners
  • The maximum amount that an IPAP may charge a rights owner for performing the functions required of the IPAP under sections 122A to 122T of the Act is $25 per rights owner notice sent to the IPAP.

Applications to Copyright Tribunal for orders

8  Application fees
  • The fee payable in respect of an application for an order under section 122O of the Act is $200.

9  Application form
  • An application by a rights owner for an order under section 122O of the Act must be made in form 2 as set out in the Schedule.

10  Right to withdraw application
  • (1) Any person who has applied to the Tribunal for an order under section 122O of the Act may withdraw the application at any time before the Tribunal makes the order.

    (2) No part of the application fee is refundable if a person withdraws an application.

11  Single member may determine application on papers
  • If an application for an order under section 122O of the Act is to be determined on the papers, the application may be determined by any 1 or more of the Tribunal members acting as the Tribunal.

Amount of Tribunal awards

12  Calculation of sums payable under section 122O of the Act
  • (1) The sum that the Tribunal may order an account holder to pay under section 122O of the Act is the lesser of—

    • (a) the sum of the amounts referred to in subclause (2)(a) to (d); and

    • (b) $15,000.

    (2) If the Tribunal orders an account holder, under section 122O of the Act, to pay a rights owner a sum, the Tribunal must determine the following:

    • (a) for each work in which the Tribunal is satisfied that copyright has been infringed at the IP address of the account holder,—

      • (i) if the work was legally available for purchase in electronic form at the time of the infringement, the reasonable cost of purchasing the work in electronic form at that time; or

      • (ii) if the work was not legally available for purchase in electronic form at the time of the infringement but was available in some other form, the reasonable cost of purchasing that work in another form at that time; or

      • (iii) if neither subparagraph (i) nor subparagraph (ii) applies, the amount claimed by the applicant in respect of the work, or any other reasonable amount determined by the Tribunal:

    • (b) the cost of any fee or fees paid by the rights owner to the IPAP in respect of the infringements to which the application relate; and

    • (c) the cost of the application fee paid by the rights owner to the Tribunal; and

    • (d) an amount that the Tribunal considers appropriate as a deterrent against further infringing.

    (3) In considering whether an amount is appropriate under subclause (2)(d) and, if so, what that amount should be, the Tribunal may consider any circumstances it considers relevant, but must also consider—

    • (a) the flagrancy of the infringement; and

    • (b) the possible effect of the infringing activity on the market for the work; and

    • (c) whether the sum of the amounts referred to in subclause (2)(a) to (c) would already constitute a sufficient deterrent against further infringing.


Schedule
Forms

rr 6, 9

Form 1
Challenge Notice

r 6

To [name of IPAP]

Name of account holder:

Notice number:

Date of infringement notice:

Ground(s) for challenging infringement notice: [eg, that the notice has been sent to the wrong account holder, or that some or all of the alleged infringements did not take place. See [link to Ministry of Economic Development Internet site or attached information] for more information on the process for challenging an infringement notice, and further examples of possible grounds.]

Date:


Signature:

Note

In order for a challenge to be valid, it must be received by the IPAP no later than 14 days after the date of the infringement notice to which the challenge relates.

Form 2
Application to Tribunal for order under section 122O

r 9

Applicant

Name of applicant:

Contact details of applicant:

Address for service of applicant:

Evidence of ownership

If the applicant is the owner of copyright in a work that is alleged to have been infringed, evidence of that ownership:

or

If the applicant is not the owner of copyright in a work that is alleged to have been infringed, evidence that the applicant is acting as agent for the owner of that copyright:

Representative

If the applicant is the representative of either the owner of the copyright or the agent of the owner,—

  • the name of the representative:

  • contact details of the representative:

  • an address for service of the representative:

Enforcement notice

Notice number of the enforcement notice to which the application relates:

Name of the IPAP that sent the enforcement notice:

Date of the enforcement notice:

Challenges to enforcement notice

Have you received any challenges to the enforcement notice or any preceding detection or warning notice? Yes/No.

If yes, attach copies of the challenges and any responses.

Infringement

Infringements to which this application relates:

Amount claimed

Amount claimed in respect of each of those infringements, in accordance with regulation 12(2)(a):

The total fee or fees paid by the applicant to the IPAP in respect of those infringements:

Application fee paid by the applicant to the Tribunal:

Any other amount claimed by the applicant:

[If the applicant is claiming any other amount, set out the basis for that claim.]

Total amount that the applicant is seeking from the account holder (which must be no more than $15,000):

Date:


Signature:

Rebecca Kitteridge,
Clerk of the Executive Council.


Explanatory note

This note is not part of the regulations, but is intended to indicate their general effect.

These regulations, which come into force on 1 September 2011, prescribe matters relevant to the Copyright (Infringing File Sharing) Amendment Act 2011, which also comes into force on that date. That Act inserted into the Copyright Act 1994 (the Act) a special regime for enabling copyright owners to take enforcement action against people who illegally share copyright works via the Internet.

The regulations—

  • set out the matters that must be included in the notice to be sent from rights owners to Internet protocol address providers (IPAPs). This notice is called a rights owner notice. Each rights owner notice must identify all the alleged infringements against the rights owner's copyright that occurred at a single IP address during a single day:

  • describe the content of infringement notices. These requirements are additional to the requirements set out in the Act:

  • prescribe the form of the challenge notice, which is the notice that an account holder may send to a rights owner, via an IPAP, to challenge an infringement notice.

The regulations prescribe that the maximum fee that an IPAP may charge a rights owner for a rights owner notice is $25 per notice.

In relation to applications by rights owners to the Copyright Tribunal to enforce infringement notices, the regulations prescribe the application fee as $200. The regulations also prescribe the form of the application and set out certain other procedural matters.

The manner of calculating the amount that the Tribunal may award under section 122O of the Act is set out in regulation 12. The Act provides that the amount awarded must not exceed $15,000. The regulations require the Tribunal to identify the various components of the award, which are—

  • the cost of each infringement, as determined in accordance with the regulations; and

  • the fees paid by the rights owner to the IPAP in respect of those infringements; and

  • the application fee paid by the rights owner to the Tribunal; and

  • any amount the Tribunal considers appropriate as a deterrent against further offending.

These components (except the last) must be identified by the applicant in the application form. If the total of these amounts in greater than $15,000, the Tribunal may award only the maximum of $15,000.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 21 July 2011.

These regulations are administered by the Ministry of Economic Development.