Significant changes to New Zealand Copyright law come into effect at the end of February 2009. In particular Sections 92A and 92C of the Copyright (New Technologies) Amendment Act affect both Catalyst and our clients.
About the law change
The recent changes to the Copyright Act are intended to curb copyright infringement on the Internet. The new law puts Internet Service Providers (ISP) in a position of responsibility between copyright holders and alleged copyright infringers.
Are you an Internet Service Provider?
Anyone that hosts websites is an Internet Service Provider (ISP) under the amended legislation. Catalyst is certainly an ISP, but your organisation may be one too.
If you host websites on behalf of others, you are an ISP. If you provide a service that “offers...connections for digital communications”, you may fall under the definition of an ISP. Tertiary education organisations that provide email and web access to students as part of a fee-paying service, are ISPs; as are public libraries that provide Internet access.
Simply providing your employees with an Internet connection for their work probably makes you an ISP. The “offer” to your employees has no contractual “promise” (such as terms that set out quality or length of service) nor “consideration” (payment etc) for that service, so there is room for interpretation in this regard.
You should certainly get legal advice on your standing with respect to the new legislation if you are in doubt.
What are an ISP's new responsibilities?
Anyone that is an ISP must have policy that deals with their responsibilities under the Act. These responsibilities include terminating the accounts of people that repeatedly infringe
So, at the very least, if you fall within the new definition of an ISP, you must vary your terms of service to reflect your new policy. If you take a conservative approach you should extend that policy to cover your employees' use of the Internet.
Who's infringing copyright?
If you offer a service – as Catalyst does – to host material, which without your knowledge infringes copyright, you are not a copyright infringer yourself.
On the other hand, if you are aware that you host copyright- infringing material and you do not delete or act to prevent access to the material as soon as possible, you will become a copyright infringer yourself. The new law says that you must also tell the copyright infringer that you have deleted or prevented access to this material.
How do you establish who is infringing?
A number of organisations representing some copyright holders monitor traffic on peer-to-peer ('file-sharing') networks, for example. If an employee or customer of yours is using your Internet connection to download material of interest to these organisations (movies, music and software typically), you may not currently be able to identify the individuals concerned. All you will know is that your organisation's externally visible IP address has been picked up by a copyright-holder's monitoring software.
When an infringement notice is issued for material hosted on a website, the copyright holder should provide a URL rather than an IP address. You should make sure your organisation can identify and contact the person or account responsible for the infringement.
What constitutes copyright infringement?
A copyright holder or their agent must serve notice of an infringement to you as an ISP. Controversially, the Act itself did not establish burden of proof for this notice. Instead regulations under the Act were to set out what information the copyright holder needs to supply to establish infringement.
The “Internet Service Provider Copyright Code of Practice” drafted by the Telecommunications Carriers' Forum (TCF) in consultation with industry groups sets out more precisely a way to establish and deal with infringement in practice under the new legislation.
The draft Code in particular requires copyright holders to supply to the ISP – amongst other things – the title, filename, IP address or URL and a timestamp for the infringement, together with the copyright holder's details and those of the person serving the notice.
The person serving the notice under the Code of Practice must agree to indemnify the ISP against the consequences of this information being incorrect.
How should an ISP deal with infringement notices?
The TCF Code of Practice covers only section 92A of the Act, which requires a policy that results in account termination for repeat infringers.
The Code of Practice does not directly cover your liabilities under section 92C if you do not as an ISP remove copyright-infringing material.
With respect to the termination policy required in section 92A, broadly speaking you have two options: 1) become a signatory to the TCF Code of Practice and follow this policy; 2) adopt and implement a policy of your own.
If you intend to adopt the TCF Code of Practice yourself or receive services from an ISP that will become a signatory to the Code, you should provide feedback during the public consultation period which ends on 5 March 2009.
The TCF Code of Practice aims to provide a fair system that results in account termination only after a series of notices are served to an account holder.
The first three of these notices are called 'Education Notices'. These are issued every month after the ISP receives an infringement notice from a copyright holder. If the infringement continues, the ISP issues a Final Warning Notice and then a Termination Notice.
The TCF Policy allows for the accusation to be challenged and has a procedure to handle this.
This advisory is not legal advice. You should always seek independent advice on your legal obligations.
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