[x-pubpol] First NZ file-share award: too little, or too much?

[Joly MacFie]

http://the1709blog.blogspot.com/2013/02/first-nz-file-share-award-too-little-or.html


The 1709 Blog thanks Simon Fogarty (Senior Associate, A J Park, New
Zealand) for the following highly topical news item:

"On 29 January 2013 the New Zealand Copyright Tribunal issued its first
decision in relation to the file-sharing infringement provisions of the
Copyright Act 1994. You can read the decision
*here<http://www.nzlii.org/nz/cases/NZCopyT/2013/1.html>
*.

In brief, the provisions are intended to give copyright owners –
particularly in the music and film industries – a relatively quick and
cheap way of dealing with unlawful peer to peer file sharing.


<http://2.bp.blogspot.com/-srUcMOA3LWA/UQual3SqSvI/AAAAAAAAjTI/0s5EKc6Wl6o/s1600/rianz.gif>
For a claim to go before the Copyright Tribunal a person must receive three
infringement notices. The three notices are known as detection, warning and
enforcement notices. After an enforcement notice has issued the copyright
owner (or its representative) can request a ruling from the Copyright
Tribunal. The tribunal will do that based on the papers filed although the
tribunal can hold a hearing at the request of one party. This case was
taken by the Recording Industry Association of New Zealand
(*RIANZ<http://www.rianz.org.nz/rianz/rianz_homepage.asp>
*). The respondent is not identified in the decision.

In the decision the Copyright Tribunal confirms that, if a person does not
challenge an infringement notice, there is a presumption that the
file-sharing identified in each notice is an infringement.

In this case the respondent did not challenge any of the notices that RIANZ
issued. In fact, the respondent acknowledged that at least one of the
infringements occurred. However, she denied any knowledge of the two other
infringements.

On the evidence, the tribunal ruled that the respondent downloaded and
uploaded two songs. The respondent was therefore found to infringe
copyright.

The tribunal then had to determine the penalty that the respondent had to
pay. The tribunal must order a penalty sum unless it is manifestly unjust
to do that. Any penalty is capped at a maximum of NZ$15,000.

The tribunal calculated a penalty of NZ$616.57 as follows.

• The damages component was based on what the respondent would have paid
for lawfully downloading three tracks – NZ$6.57.

  • The contribution to the ISP's fees for processing the three notices was
set at NZ$50 – the actual fees were NZ$75.

  • The applicant's NZ$200 official fee.

  • A deterrent sum calculated at NZ$360.

When calculating the deterrent sum, the tribunal took into account

• the flagrancy of the infringement

  • the effect of the infringing activity on the market for the work

  • whether the other sums awarded in the penalty are a sufficient
deterrent to future infringing.

The tribunal held that the infringing was not flagrant and that there was
no evidence that the respondent's uploading had any detrimental impact on
the market for the works. The tribunal ruled that because the other penalty
sums were modest, the respondent should be fined a deterrent sum of NZ$120
per infringement.

There has been a mixed reaction to the decision, including comments that
this is a bad law as the onus is primarily on the defendant. There is also
some speculation that the sum awarded is too low to be effective.

In relation to the latter point the decision sends a clear message to
internet users that they can be penalised if they breach the provisions of
the Act. At first blush NZ$616.57 may not seem like a high penalty. But for
the majority of people, having to pay that fine would be a burden.
Certainly, it is far more than the NZ$6.57 that the respondent would have
paid if she had downloaded the songs lawfully".

The fine, in European terms, works out at about 380 euro, or US$ 520. Is it
a meaningful deterrent? Is it excessive in relation to the infringement, or
inadequate in relation to the complexity and bureaucracy of the procedure
which leads to it?  And how is it distributed?  Readers may have further
questions. This is a good time and place to ask them.

-- 
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