File sharing infringements
File sharing is where material is uploaded via, or downloaded from, the internet using an application or network that enables the simultaneous sharing of material between multiple users. Uploading and downloading may, but need not, occur at the same time.
Sections 122A to U of the Copyright Act 1994 provide a process for copyright owners to use when they consider an internet user has infringed their copyright via a file sharing network.
File-sharing networks are not illegal in themselves. However, much of the content on file-sharing networks is music, film, television, books or software that is protected by the Copyright Act 1994.
A rights owner can make a claim against an internet account holder who the rights owner alleges has infringed copyright via file sharing.
This section covers the following:
- Who can apply?
- When can an application be made?
- Does it cost anything to apply?
- Make an application
- Can I make a late application?
- How does the Tribunal determine an application?
- What happens at a hearing?
- What decisions can the Tribunal make?
- What can I do if I disagree with the Tribunal’s decision?
- How do I withdraw my application?
A copyright owner, their agent, or a duly authorised representative can make an application to the Copyright Tribunal.
Applications cannot be made to the Tribunal until three infringement notices have been issued to an internet account holder on behalf of the rights owner.
For an overview of the three-notice process before an application can be lodged with the Tribunal, click here.
All applications MUST be received by the Copyright Tribunal within 35 calendar days (New Zealand Standard Time) after the final notice – the enforcement notice. Challenges to the enforcement notice affect the timing when an application can be made during this 35 day period.
If no challenge is made to the enforcement notice
If no challenges to the enforcement notice have been received by 14 days after the enforcement notice date, the rights owner can apply to the Tribunal at any time after that, up until the close of the 35th day.
If a challenge is made to the enforcement notice
If a valid challenge is made, whether or not it is rejected, the rights owner cannot apply to the Tribunal until the 28th day after the enforcement notice date, and must do so before the close of the 35th day.
For example, an enforcement notice is issued on 1 March, and
- by the close of 15 March (14 days later), no challenges have been received. You can apply to the Tribunal at any time after that, up until the close of 4 April; or
- on 15 March, a valid challenge is received. You have until 28 days after the date of the enforcement notice to reject the challenge. Even if you reject the challenge straight away, you cannot apply to the Tribunal until after 29 March (the 28th day – last day on which challenge could be rejected) and must do so before the close of 4 April.
The application fee is NZ$200. This is non-refundable, even if the application is withdrawn.
Important information before you proceed with making an application
Before you begin your application, ensure you have the following documents to hand:
- A copy of the enforcement notice
- A copy of any challenges
- A copy of any challenge responses
- Evidence that the rights owner is the owner, or acts as the agent for the owner, of the material in which copyright is alleged to be infringed.
Please note that all documents must be in English, in PDF format, and size 1MB or less.
To make an application you must lodge it online and pay the application fee of NZ$200. Only Visa and Mastercard debit/credit cards can be accepted for payment.
Applications must be completed and submitted in a single session.
To apply, click on the Apply online link below.
The Copyright Tribunal has NO AUTHORITY under the Act to accept late applications.
The Tribunal will normally consider an application 'on the papers'. This means that the Tribunal will make its decision based on written submissions.
However, any party may request a hearing or the Tribunal may decide that a hearing should be held.
If a hearing is held, every party may appear personally and be heard.
A party is normally not represented, except in certain situations. These exceptions can be found by clicking here.
A representative may not be a lawyer, unless the Tribunal gives its approval.
The Tribunal will be able to order an internet account holder to pay a rights owner:
- for each infringement that it is satisfied was committed against the rights owner at the IP address of the account holder
- a contribution towards the fee or fees paid by the rights owner to the IPAP
- the cost of the application fee paid by the rights owner to the Tribunal
- an amount that the Tribunal considers appropriate as a deterrent against further infringing.
The total amount ordered by the Tribunal to be paid by the account holder must not exceed $15,000.
You can only appeal the Tribunal’s decision if you believe it is wrong in law. You must lodge your appeal with the High Court within 20 working days of being told the Tribunal’s decision and provide a copy to the Tribunal.
You should seek legal advice before appealing to the High Court.
You can withdraw your application at any stage before a decision is made, but you must do so in writing. You can download the Withdrawal Application Form here.
Note that all application fees are non-refundable.