Three Strikes Warning System
The Copyright (Infringing File Sharing) Amendment Act 2011 was enacted with the aim of providing more effective means for copyright owners to enforce their rights against people involved in unauthorised peer-to-peer file sharing of copyright material. In other words, file sharing is only illegal if it involves copyrighted material.
The law introduced a three-strike warning system and enforcement process against people who infringe copyright through file sharing. The three strikes warning system is limited to peer-to-peer-file sharing. For instance, it does not apply to streaming, tunnelling, remote access, or file transfer protocols.
The streaming of an illegally uploaded YouTube video may still constitute a copyright infringement. However, the rightful owner of the video cannot enforce the copyright through the three strikes warning system.
The primary liability for copyright infringement via file sharing rests with the Internet account holder. Internet Protocol Address Providers (IPAPs) are the conduits of the notice process.
The copyright owner has to provide the IPAP with the IP address at which the copyright infringing file sharing is alleged to have occurred. The IPAP has seven days to match the IP address to the Internet account holder and issue the appropriate infringement notice to that person. Due to privacy laws, IPAPs are not allowed to disclose any details of the Internet account holder to the copyright owner.
IPAPs are required to send warning notices to their customers, advising them that they may have breached copyright. The Copyright Act provides for three types of infringement notices: detection notice (first notice), warning notice (second notice), and an enforcement notice (third notice). Each notice has to comply with specific requirements.
The detection notice informs the Internet Account Holder of an alleged copyright infringement. The detection order expires after nine months.
A warning notice can only be issued if the detection notice has not yet expired. It must relate to a copyright infringement via file sharing of copyright material from the same copyright owner. The warning notice expires nine months after the date of the preceding detection notice.
An enforcement notice is issued by an IPAP against an Internet account holder in respect of at least three alleged infringements against a rights owner. An enforcement notice expires 35 days after being issued.
All three notices have to come from the same copyright owner.
After the third notice, the copyright owner may seek an order from the Copyright Tribunal for a sum of up to NZ$15,000.
As of 25 February 2013, the Copyright Tribunal has received 20 cases. 8 cases were withdrawn. 4 cases were decided and 8 cases are yet to be determined.
Have you received an infringement notice? Contact me: