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Copyright (Infringing File Sharing) Amendment Act

The internet has totally revolutionised the entertainment industry.

Downloading music and movies, also known as file sharing, has become common practice in this day and age. However, it is sometimes easy to forget that behind that one click on the “download” button, lies someone’s art, their work and source of income that when downloaded without permission, is in breach of our copyright laws.

The Copyright (Infringing File Sharing) Amendment Act 2011 (“the Act”) was passed into law by Parliament on 18 April this year and commences 1 September 2011. The Act repeals a section of the Copyright Act 1994 and replaces it with two new sections that specifically deal with illegal peer-to-peer file sharing.

A review of section 92A of the Copyright Act 1994 concluded that the enforcement measure was ineffective in its current state and its repeal and subsequent replacement is intended to offer greater deterrence for illegal file sharing through the implementation of a three-step notice regime. Previous concerns over an ad-hoc approach to the suspension of internet accounts and a lack of judicial oversight have been addressed with the new Act requiring either the Copyright Tribunal (‘the Tribunal’) and/or District Court to assess matters and oversee the formulation of proportionate remedies.

The Three-Step Regime The Act provides an overview of the ‘Infringing File Sharing’ regime and states that the purpose of the amendment is to “provide copyright owners with a special regime for taking enforcement action against people who infringe copyright through file sharing.”

The regime itself is based on a notice system where three kinds of infringement notices will be sent to offending account holders before enforcement ensues. The first notice is a detection notice, it is followed by a warning notice, and finally an enforcement notice. The notices are to be issued to the account holder by the Internet Protocol Address Provider (IPAP); which was formerly known as an Internet Service Provider (ISP).

Penalties If an account holder continues to infringe after receiving all three notices, the copyright owner is able, under the Act, to apply to the Tribunal or District Court for relief and enforcement options.

The Act also permits the Tribunal to award damages against the account holder, the sum of which is to be determined by the Tribunal. The amount ordered can be up to $15,000, and is to be based on the level of damage or loss sustained by the copyright holder.

Alternatively, the copyright holder will be able to apply to the District Court for a suspension of the account holder’s internet account. The District Court may, after considering both parties’ arguments, make a suspension order requiring an IPAP to suspend the internet account of an offender for up to six months. The suspension order is supposed to be reserved for more serious offenders.

Account holders are able to challenge the infringement notices and can request a hearing if they feel they should not be penalised.

ISP Definition Amended The new amendment has also redefined an internet service provider and the former acronym of ‘ISP’ has been replaced with ‘IPAP’, which stands for “Internet Protocol Address Provider”. The new definition is a broader one which encapsulates some organisations that are not traditional ISPs such as businesses and universities. The amendment bestows upon such organisations similar responsibilities as a traditional ISP and requires such organisations to send notices to infringers in the same manner as a traditional ISP.

If you have any queries regarding copyright law please contact Jane Min or anyone in our commercial team.

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