Section 92A bill introduced to Parliament today

  • Simon Power

A bill repealing Section 92A of the Copyright Act will be introduced into Parliament today by Commerce Minister Simon Power.

The Copyright (Infringing File Sharing) Amendment Bill repeals Section 92A and replaces it with a three-notice regime which is intended to deter illegal file sharing.

"This amendment puts in place a fair and balanced process to deal with online copyright infringements occurring via file sharing," Mr Power says.

"The major feature is the three-notice process, which educates the public about illegal file sharing and provides effective methods for copyright owners to enforce their copyright.

"It ensures that file sharers are given adequate warnings that unauthorised sharing of copyright works is illegal."

The bill also extends the jurisdiction of the Copyright Tribunal, enabling it to hear complaints and award penalties of up to $15,000 based on the amount of damage sustained by the copyright owner.

Mr Power says the bill will also enable copyright owners to seek the suspension of internet accounts through the District Court for up to six months.

"It's important that account holders are given a reasonable time to stop infringing before enforcement takes place.

"The bill prescribes timeframes so account holders have the opportunity to address illegal file sharing activity occurring on their internet connection before enforcement action is taken.

"They will also have the chance to challenge notices and may request hearings at the Copyright Tribunal to contest infringement claims.

"Regulations will outline the awards the tribunal may make and they'll be drafted later this year when the bill has been enacted.

"Online copyright infringement is a problem for everyone, but especially for the creative industry, which has experienced significant declines in revenue as file sharing has become more prevalent.

"This bill is the result of extensive consultation with stakeholders and is an important step in addressing a complex issue."

Questions and Answers:

Why are we amending the Copyright Act?

Peer-to-Peer file sharing involves the sharing of music, video and game files over computer networks such as the internet.  Often this sort of sharing is without authorisation from the copyright owner, breaches their copyright, and denies them revenue they might otherwise earn if they sold these creative works. 

Current enforcement measures under the Copyright Act are not considered effective. Section 92A of the Act was intended to provide a way to address this problem but was met with a lot of public concern.

A review of section 92A was undertaken, and the result of the review is that the government has decided to repeal section 92A and amend the Copyright Act to make it easier for copyright owners to enforce their rights against peer-to-peer file sharers.

What does the new legislation say?

The bill repeals Section 92A and puts in place a three-notice regime intended to deter illegal file sharing.

Copyright owners who can provide evidence of infringements will be able to request Internet Service Providers (ISPs) give alleged infringers notice to stop infringing activity.

The first notice will inform the account holder that infringing activity has occurred and that it is illegal.  A second and third notice may then be sent if the account holder ignores notices and continues infringing. 

Account holders will also be able to challenge notices.

If the person continues to infringe, the copyright owner may seek a compensation award at the Copyright Tribunal. The amount of the award will be up to $15,000 based on the amount of damage caused to the copyright owner. 

Account holders will be able to request a hearing if they feel they should not be penalised.

The bill prescribes time frames for all aspects of the notice regime. 

Why is it up to ISPs to issue notices rather than right holders?

The responsibility for issuing notices is with ISPs because only they have access to account holders' personal information. Accordingly, only they can match evidence of peer-to-peer infringement with that account holder. 

Why is there a new ISP definition?

A new definition of ISP will be added into the Copyright Act specifically for the new regime.  Public submissions demonstrated a concern that some organisations that aren't traditional ISPs, including businesses and universities, could be required to send notices to infringers under the current definition.

Will the new legislation allow the suspension of internet accounts?

Yes, but copyright owners must seek the suspension of an internet account through the courts. An internet suspension will only be ordered under specific and appropriate circumstances, and will only be for up to six months.  The Bill requires a court to consider factors like the account holder's reliance on access to the Internet.  It is expected this remedy will only be used for serious cases of infringement.

Why is this remedy up to the courts?

The decision to suspend an internet account will be up to the courts because only the courts can adequately consider both parties' arguments and take into account natural justice issues.

How much will it cost copyright owners to pursue a claim?

The fees have not been set yet and will require further consultation with stakeholders. These will be included in the regulations that will go with the new legislation. However, copyright owners will pay a fee to ISPs for the costs ISPs will incur matching evidence and sending notices. . 

Copyright owners will also pay a fee to take a claim to the Copyright Tribunal.  At this stage the application fee will be similar to the fee charged by the Disputes Tribunal which is between $30 and $100.

Account holders intending to defend a claim before the Tribunal will not be charged a fee.

Will this new process cost the taxpayer and if so, how much?

Yes, the Crown will need to cover the costs of setting up the Copyright Tribunal for its extended jurisdiction. Some of the cost will be recouped by the fee necessary to take a claim to the Tribunal. The cost will depend on the number of cases taken to the Tribunal which should decrease as the public become familiar with the new notice regime.

Work around this is ongoing.

This seems to have taken a long time. Has it?

No. Officials and government have been moving this process along as quickly as possible. However, there was a large volume of submissions received and they all needed to be addressed. Also, the new regime affects several Ministries so adequate inter-departmental consultation was important.

It has been a complex issue and the focus has been to provide the best possible solution that is workable and effective.

How does ACTA relate to the review of section 92A?

It doesn't. The review of section 92A is on a separate track from the ACTA discussions. 

What is the process from here?

The bill has been introduced into Parliament.  Following its first reading it will be referred to Select Committee, where the public will have another opportunity to make further submissions on the legislation. The Ministry of Economic Development will continue to consult with stakeholders on certain parts of the regulations that set fees and confirm how the system will work. 

It is expected that the legislation will become law this year. 

Where can I get a copy of the bill?

A copy of the bill can be obtained from