File sharing infringement happens when protected copyright work is illegally shared without the owner’s permission. For example, illegally uploading or downloading a new release movie or music track.
New Zealand’s file sharing infringement notice process
The New Zealand Copyright Act 1994 includes a three notice process for copyright owners to take enforcement action against people who infringe copyright via file sharing.
1. Detection of an alleged file sharing infringement
The copyright owner gathers evidence and contacts the Internet Service Provider (ISP), who can issue notices to the account holder.
| Copyright owner | Internet service provider (ISP) |
|---|---|
| Contacts the internet service provider (ISP) requesting that a Detection Notice be sent to the internet account holder. | Matches the IP address to one of its customer accounts (where possible). |
| Passes on the recorded internet protocol (IP) address associated with the computer or smart device that downloaded their content. | The ISP is required by law to act on the owner’s behalf, and where appropriate issue infringement notices to the person who holds the identified account. |
The Regulations set the maximum fee that the ISP can charge for issuing notices.
2. ISP notifications
The ISP can send up to three notices to the account holder for each alleged infringement.
| Internet service provider (ISP) | Account holder |
|---|---|
| Issues a Detection Notice, followed by a Warning Notice, and then the Enforcement Notice if file sharing activity continues. | Can cease the file sharing activity or challenge each notice. |
The Detection Notice includes information about the consequences of further infringing and how the account holder may challenge the notice.
3. Account holder challenge
The account holder can challenge any notice received from their ISP.
| Account holder | Internet service provider (ISP) | Copyright owner |
|---|---|---|
| Completes the Challenge form accompanying the notice and sends it back to their ISP. | Sends the Challenge to the copyright owner, omitting the Account holder’s name and contact details. |
Must respond to the ISP, otherwise the notice is cancelled. If the Challenge is:
|
4. Copyright owner application to the Copyright Tribunal
The copyright owner can take enforcement action against an account holder who has been issued with an Enforcement Notice.
| Copyright owner | Copyright Tribunal | Legal decision |
|---|---|---|
|
Files the application, including a copy of the Enforcement Notice, any challenges, challenge responses, and the prescribed fee. |
Usually the Tribunal will make a decision based on the written submissions. Occasionally a hearing will be held at the request of the copyright owner, account holder, or the Tribunal itself. |
The Copyright Tribunal will issue its decision. The Tribunal has the ability to award damages to the copyright owner. The total amount cannot exceed NZ$15,000. |
The Tribunal may decline to make an order awarding damages when it would be manifestly unjust to the account holder.
5. Rehearings and appeals
Either the account holder or the copyright owner can apply, within 28 days of the order or agreed settlement, for a rehearing with the Tribunal, or appeal to the District Court.
Legal definitions
Internet Service Provider
The file sharing notice regime applies to internet protocol address providers (IPAPs) as defined in section 122A of the Act.
Account holder
The person or organisation recorded by the IPAP as the owner of a specific account. The law treats the account holder liable for any illegal filing sharing activity, no matter who actually used the account to illegally file share.
Resources
- New Zealand Copyright Act 1994 – infringing file sharing section 122
- Copyright Tribunal Decisions - published by the New Zealand Legal Information Institute (NZLII)
- Ministry of Justice’s Copyright Tribunal file sharing infringements information
- Ministry of Business, Innovation and Employment’s file sharing notice regime information
- Netsafe - an independent non-profit organisation that promotes cyber-safety and provides guidance on how you can secure your smart devices and wireless networks.