New Zealand passes robust Graduated Response legislation

Yesterday, 13 April 2011, the Copyright (Infringing File Sharing) Amendment Bill was approved by the New Zealand Parliament (video here), amending the 1994 Copyright Act. Although the Government was bitterly criticised by the Green Party during the debate, the main parties supported the Bill, resulting in 111 votes in favour and only 11 opposed. At Third Reading the Government introduced certain amendments, including the pushing back of commencement to 1 September 2011.

Under the amended Copyright Act, right holders will be entitled to require ISPs to notify subscribers of detected infringements. After 3 notices, the right holder will be able to bring the subscriber before the Copyright Tribunal, claiming payment of a penalty of up to $NZ 15,000. 

The Act also makes provision enabling the right holder to sue in the District Court for an order requiring the subscriber's ISP to suspend his Internet access for up to 6 months. However, the Government has to some extent deferred to activist and ISP opposition by agreeing to suspend implementation until the effectiveness of the Copyright Tribunal system has been established. The relevant provisions can be brought into effect by Order in Council.

As a result of review in Committee, the Act adopts a more limited definition of file-sharing than that originally proposed. It now applies only to cases where "material is uploaded via, or downloaded from, the Internet using an application or network that enables the simultaneous sharing of material between multiple users; and ... uploading and downloading may, but need not, occur at the same time." This would seem effectively to cover peer-to-peer infringement, but not the rapidly growing problem of cyberlockers, such as Rapidshare or Megaupload. These services, hugely used for piracy, are one-to-one user-server applications. As they do not enable sharing "between" multiple users, they seem to fall outside the definition.

This robust scheme seems likely to provide a testbed for GR under a common law system, as the UK's Digital Economy Act limps on towards an unknown destiny ...