In the second of a four-part series looking at complex political issues in New Zealand, REYNALD CASTAÑEDA examines the logistics of the Copyright Amendment Act and why it is still causing debate. 

Opposing camps are still furiously divided over the fining of illegal downloaders, almost a year after the Copyright Amendment Act was enforced.

This act intended to tighten laws around peer-to-peer file sharing. 

Downloaders are punished through a three-strike system over nine months, and initially receive two warnings before a third and final enforcement notice.

Following this, the copyright owner can then take the internet bill payer to the Copyright Tribunal and slap them with a maximum fine of $15,000.

Between October 2011 and April 2012, the Recording Industry Association of New Zealand (RIANZ) sent out 2766 warnings.

Half a dozen of these warnings have gone through to the third level.

None of them have been forwarded to the Copyright Tribunal.

New Zealand Federation Against Copyright Theft (NZFact), which represents film distribution companies in this country, are yet to send out notices.

Claire Deeks is a senior associate at James & Wells Intellectual Property and represents both RIANZ and NZFact.

She says the act has been “marginally successful to date”.

“There was a significant drop off in the number of file sharing activities.” 

However, Green MP Gareth Hughes disagrees and says the act is not working on its own terms.

“I think it’s been good that it sparked a national debate, but that law has been a failure.”

Deeks says there is still potential for the act to work.

“The three-strike system was set up to provide some sort of intermediary step to assist the rights holders, so it wouldn’t be as expensive to enforce.

“If a client becomes aware that someone is repeatedly infringing, they can take the alternative measures of the act rather than going through these provisions.

“Nothing takes their right away from taking immediate injunction for this sort of thing,” she says.

Hughes says the law “moved downloading peer-to-peer to other mechanisms”.

“We know other types of file sharing are increasing.”

Streaming websites and file lockers that infringe copyright are currently covered by the Copyright New Technologies Amendment Act of 2008.

Hughes says the three-strike system “shies away from the real issue”.

“We need to provide a real alternative and not just focus on a punitive infringement approach.”

Currently, copyright owners who want to send out warnings are required to pay an administration fee of $25 to the internet service providers (ISPs).

RIANZ and NZFact want the fee reduced to something nominally less than a dollar.

A RIANZ report sent to Parliament’s Commerce Select Committee in 2010 says they could spend at least $285,000 at $4.75 per notice if they sent out 5000 warnings to ISPs.

Deeks says the administration fee is too costly for copyright owners. 

“The issue for the rights owners is the very high amount charged by the ISPs for the notices.

“There’s no point for clients to take action if it’s too expensive.”

However, in Telecom’s fee review submission to the Ministry of Economic Development in April, the ISP pushed to increase the fee to $104 to recover “operating costs for complying with the Copyright regime”.

Additionally, TelstraClear reported that “initial establishment costs alone equate to approximately $222.78 for each notice”.

Hughes warns these fees could be passed on to internet users’ bills.

“I think we need a fair fee, which is based on real costs and not on what the industry wants,” he says.

“There should be a government investigation on the real costs, not just arguments that are happening at the moment.

“This is a costly exercise.”

A regular film downloader, who does not want to be named, says the act “was a bit of a bluff”.

“They’re using fear to make us stop,” he says.

“It’s hard for them to police.”

He says he stopped downloading for three months after the act was put into effect, but then began to build back up.

“There’s a system in place I’m trying to test.”