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Facts
The respondent in this case was an individual owner of an IP address from which the uploading of music had been detected on three occasions. The applicant was the Recording Industry Association of New Zealand (RIANZ), who filed the application to the Tribunal as representative of the two copyright owners, Island Def Jam Music Group (Universal Music Group New Zealand Limited) and RCA Records (Sony Music Entertainment New Zealand Limited).
The respondent first received a Detection Notice in November 2011, alleging that she had infringed copyright in the Rihanna song Man Down by uploading it via BitTorrent, thereby communicating it to the public in breach of section 16(1)(f) of the Copyright Act 1994 (NZ) (Copyright Act), which grants the copyright owner the exclusive right to communicate copyrighted work to the public. A Warning Notice was subsequently issued to the respondent in June 2012 in respect of a further alleged upload of the same song and finally an Enforcement Notice was sent on 30 July 2012 alleging that the respondent had uploaded the song Tonight Tonight.
The legislation
Section 122 of the Copyright Act creates a graduated response regime for taking enforcement action against people who infringe copyright through file sharing. Under the system, infringers receive a series of three infringement notices of increasing seriousness (Detection, Warning and Enforcement notices) if copyright infringement by file sharing is detected, before a Copyright Tribunal hearing can be held. The first two notices are designed as warnings, and the next notice in the series will be issued if a later, separate infringement occurs after the previous notice has been issued.
Notices are issued by an internet protocol address provider (IPAP) at the request of, and at a cost of $25 per notice to, the copyright owner.
If an infringement is found to have occurred, the Tribunal can require the respondent to pay various sums to the applicant under heads of relief including compensatory damages for infringement, a contribution towards the fees paid by the rights owner to the relevant IPAP, reimbursement of the Tribunal application fee paid by the applicant, and a deterrent sum. The total amount the respondent is ordered to pay cannot exceed NZ$15,000.
The decision
While the respondent claimed she had only downloaded, and not uploaded, the music, she had downloaded the file sharing software to her computer and the Copyright Tribunal accepted that uploading and downloading can occur simultaneously. In this case, the Copyright Tribunal accepted that uploading did occur regardless of the respondent's intentions.
In any case, under the legislation it is also possible to issue infringement notices in respect of downloading, although this has yet to occur.
The respondent was ordered to pay a total of NZ$616.57, based on:
- the cost of purchasing the songs (a total of $6.57);
- a contribution of $50 towards the $75 cost of issuing the three notices (calculated as the whole cost of the Enforcement notice, two-thirds of the cost of the Warning Notice, and one-third of the cost of the Detection Notice);
- $200 for the cost of applying to the Copyright Tribunal; and
- $120 for each of the three infringements as a deterrent sum.
Is it logical to pursue individuals who download a small amount of music?
While it may seem somewhat inequitable that this particular individual (who the Tribunal noted had not 'flagrantly' broken the law) was pursued when countless others get away with engaging in copyright infringement by file sharing on a daily basis, the 2012 Australian High Court iiNet decision shows that the idea of pursuing the infringers themselves may be the logical (though perhaps not the most practicable) option.
The iiNet decision, in which the applicant copyright holders unsuccessfully argued that internet service provider (ISP) iiNet was liable for the actions of its customers in unlawfully downloading copyrighted content (on the basis that the ISP had authorised their downloads) highlights the difficulty in seeking to address the issue of piracy by pursuing intermediary entities other than individual infringers (see our summary of this decision here).
Would this approach work in Australia?
Similar 'three strikes' or graduated response systems are in place in other jurisdictions including France and the USA. While there is currently no graduated response system in Australia, there was some discussion about introducing one following the iiNet decision. At this stage, however, the terms of reference for this year's Australian Law Reform Commission (ALRC) copyright inquiry do not address the issue of piracy and enforcement, although the ALRC states that it is watching for any developments in these areas.
Graduated response systems are of course not without their drawbacks. Critics point to the high cost involved in pursuing individual infringers, a criticism which may be given some weight by the low deterrent amount levied in the RIANZ case. In the area of unlawful downloading of copyrighted content, it seems that no enforcement option has yet adequately addressed the problem.
An alternative solution may, of course, lie in giving consumers more options to access and download copyrighted content legally. In an interesting development (given the continued prevalence of unlawful downloading), the International Federation of the Phonographic Industry (IFPI) announced last month that the music industry experienced growth in 2012 for the first time since 1999, thanks in no small part to digital sales. While the overall industry growth was a modest 0.3%, digital sales recorded stronger growth of 9%. Some industry commentators have suggested that subscription-based services such as Spotify and Pandora (which allow users to legally stream and listen to music) have contributed to this result.
If the 2012 industry growth can be taken as an indication that the tide is to some degree turning against infringing downloads, it may be that creating new ways for users to quickly and legally access copyrighted content will do more to combat piracy than a program of enforcement action. Watch this space.
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