Recently we examined some of the first copyright infringement notices sent by Orcon and noticed that they did not comply with the regulations.
The omissions are significant and make it harder for the accounts holder to challenge the notice on the facts, but we believe there are excellent grounds for challenging the notice because the notice itself is invalid. The rights holders may or may not accept this but ultimately it will be up to the Copyright Tribunal to make the final decision.
So, what are the requirements for a valid infringement notice? They're spelt out in two places - the Copyright Act (mainly section 122) and the associated Copyright (Infringing File Sharing) Regulations. We'll only be looking at the requirements for the notices from the ISP (internet service provider) to the account holder (the person paying for the internet connection).
A detection notice must include:
- The name of the rights owner (or their agent).
- The name of the owner of the copyright of the work.
- The name of the work that is alleged to be infringed.
- The type of work it is (from the list at section 14(1) of the Copyright Act). This is one of literary, dramatic, musical or artistic works; sound recordings; films; communication works; or a typographical arrangement of a published edition.
- What they're accusing you of doing to infringe copyright (from the list at section 16(1) of the Copyright Act). This includes copying, issuing copies, performing, playing or showing it in public, making an adaptation, or authorising someone else to do any of those).
- The date of the infringement down to the hour, minute and second.
- The internet IP address where the infringing is alleged to have occurred.
- Identify the file sharing application or network used in the alleged infringement.
- The date of the notice.
- Explain the consequences if further infringing occurs.
- Explain how to challenge the notice and give either a form to fill out or a link to an online form.
- Include an infringement number. This number must be unique, indicate whether it is a detection, warning or enforcement notice, and identify the ISP sending the notice.
- Include the ISP's contact details.
- Include links to the relevant section of the Ministry of Economic Development's website.
A warning notice (the second notice after a detection notice) must include all of that information as well as:
- Identify the relevant detection notice that this is the follow up to.
- List any other alleged infringements that the account holder has detected since the detection notice.
An enforcement notice (the third notice) must include all of that information as well as:
- Explain the enforcement action may now be taken against the account holder.
- Explain that no further infringement notices can be issued by that rights holder until the end of the quarantine period (35 days from the date of the enforcement notice).
Challenging a Notice
When you receive a notice you have 14 days to challenge it before it is regarded as being accepted.
If you receive a notice, we suggest that you check it very carefully. If it is incorrect or omits required information you should challenge it. It will be up to the rights holder to decide whether to accept your challenge, but any challenges can also be used in your defence if you appear before the Copyright Tribunal. The notice will include instructions on how to challenge it.