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Copyright (Infringing File Sharing) Amendment Bill (Consistent) (Sections 14, 27(1)) [2010] NZBORARp 3 (11 February 2010)

Last Updated: 5 May 2019

Copyright (Infringing File Sharing) Amendment Bill

11 FEBRUARY 2010 ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

COPYRIGHT (INFRINGING FILE SHARING) AMENDMENT BILL

1. We have considered whether the Copyright (Infringing File Sharing) Amendment Bill (PCO 14034/5.0) (the ‘Bill’) is consistent with the New Zealand Bill of Rights Act 1990 (‘Bill of Rights Act’). We understand that the Bill is to be considered by the Cabinet Legislation Committee on 18 February 2010.
2. In our view, the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching this conclusion, we considered potential issues of consistency with ss 14 (freedom of expression) and 27(1) (right to natural justice).
3. The Bill will amend the Copyright Act 1994. The Bill seeks to provide new enforcement measures against unauthorised sharing of copyright material via the internet (infringing file sharing). The enforcement regime will include three notices to an account holder engaged in infringing file sharing. Following the third notice, the copyright owner may apply to the Copyright Tribunal (‘the Tribunal’) for a compensation award up to $15,000. Copyright owners may also make an application to a District Court for an order requiring an Internet Service Provider (‘ISP’) to

suspend the account holder’s internet access for up to six months. Account holders may challenge infringement allegations by copyright owners.

CONSISTENCY WITH SECTION 14 OF THE BILL OF RIGHTS ACT

4. Section 14 of the Bill of Rights Act affirms that everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind and in any form. The concept of expression is to be afforded the least restrictive interpretation possible.[1]
5. The act of copying may fall within the ambit of expression.[2] A person who reproduces a copyrighted work through file sharing is seeking and receiving that work and may subsequently impart that work to others even though the person is infringing copyright. The regime will also provide for a District Court order for a six month suspension of internet access. Temporary suspension of internet access will limit an account holder’s freedom of expression.
6. We consider that the special enforcement regime for addressing file sharing will be

prima facie inconsistent with s 14 of the Bill of Rights Act.

7. Where a provision is found to be prima facie inconsistent with a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is justifiable in terms of s 5 of that Act. The s 5 inquiry is essentially two-fold: we consider whether the provision serves an important and significant objective, and whether there is a rational and proportionate connection between the provision and the objective.[3]

8. The Copyright Act establishes copyright, a property right in certain original works, and protects copyright in a work from infringement. The objective of this Bill is to extend the provisions of the Act to provide for an enforcement regime for instances of file sharing that infringe copyright. We consider this to be an important and significant objective.
9. The Bill proposes a low-cost and efficient regime to deter infringing file sharing. The regime reflects the relatively low value of most music, movie and software files which are shared in breach of copyright. It is often uneconomic for a copyright owner to take enforcement action against individuals because of the cost of court action in comparison to the value of an infringement. However, the extent of downloading and uploading by individuals is so prolific that copyright owners claim that it is having a substantial economic effect on their businesses.
10. The regime will not affect the expression of ideas associated with digital works. The Copyright Act protections for fair dealing will also continue under the regime.[4] The regime provides for a graduated response where three or more notices of file sharing copyright infringements will allow a copyright owner to seek civil remedies through the Tribunal. The remedies are limited to $15,000 at the Tribunal and six months suspension of internet account available on application to the District Court.

The regime set out in the Bill is the product of significant consultation between copyright owners, ISPs and civil society and represents a balancing of the rights of all the parties.

11. We consider that there is a rational and proportionate connection between protecting the copyright in digital works and the regime set out in the Bill The proposal is therefore justified in terms of s 5 of the Bill of Rights Act.
    

CONSISTENCY WITH SECTION 27(1) OF THE BILL OF RIGHTS ACT

12. Section 27(1) of the Bill of Rights Act affirms that every person whose interests are affected by a decision by a public authority has the right to the observance of the principles of natural justice.
    

Time limits

13. New section 122G(2) of the Bill limits the time available for an account holder to challenge an infringement notice to one week. Similarly, if a copyright owner or ISP does not reject a challenge within three weeks of sending the infringement notice, the challenge is deemed to be accepted. Although time limits can limit the right to natural justice, in this case, the time limits appear to be reasonable and do not limit the right to natural justice affirmed in s 27(1) of the Bill of Rights Act.
    

Representation by a lawyer

14. New section 122M(4) seeks to minimise the involvement of lawyers in the hearings at the Tribunal. The purpose of this is to limit the cost of disputes and to encourage a balanced playing field between the parties to the dispute.
15. The principles of natural justice might require that a person be legally represented where representation is necessary in the interest of fairness.[5] A question of

fairness might arise where there are points of law to decide, the capacity of a particular party to represent themselves is in doubt, or procedural difficulties are likely to be encountered. New section 122M(4) allows the Tribunal to give leave to representation by a lawyer. The Tribunal would need to act reasonably in giving or refusing such leave, and would be subject to judicial review. Accordingly, new section 122M(4) appears to be consistent with s 27(1) of the Bill of Rights Act.

Opportunity to be heard

16. We understand that the enforcement regime does not prevent account holders from making representations at the Tribunal or District Court that they are without fault for repeated copyright infringements or that they took all reasonable steps to prevent or stop the repeated infringements. The Tribunal must be satisfied that the account holder is liable for repeated copyright infringements before it may make an order requiring the account holder to pay a copyright owner compensation. A District Court must be similarly satisfied before making an order for a sixth month suspension of internet access. The enforcement regime does not, therefore, appear to be inconsistent with s 27(1) of the Bill of Rights.
    

CONCLUSION

17. This advice has been prepared by the Public Law Group and the Office of Legal Counsel. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.
    

Jeff Orr

Chief Legal Counsel Office of Legal Counsel

Footnotes:

1. Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 and Moonen v Film and Literature Board of Review [2002] NZCA 69; [2002] 2 NZLR 754
2. Butlers The New Zealand Bill of Rights Act: A Commentary (Wellington: 2005) 311.
3. In applying section 5, we have had regard to the guidelines set out by the Supreme Court in Hansen v R [2007] NZSC 7; the Court of Appeal in Ministry of Transport (MOT) v Noort [1993] 3 NZLR 260, Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 and Moonen v Film and Literature Board of Review [2002] NZCA 69; [2002] 2 NZLR 754; and the Supreme Court of Canada's decision in R v Oakes (1986) 26 DLR (4th).
4. Copyright Act s 42.
5. Drew v Attorney-General [2001] 1 NZLR 428.
   

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Copyright (Infringing File Sharing) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.