A safe harbour from copyright infringement liability

If you operate a website, ISP or other online service in New Zealand, a recent law change provides you with a limited, but useful, protection against some types of copyright liability.

The new section 92B (no, not 92A) of the Copyright Act 1994 came into force last year. While the attention was on its “guilt by accusation” neighbour, section 92B has quietly provided all website operators, ISPs, and businesses who have a LAN with what is known in the US as a “safe harbour” provision.

Section 92B states (allowing some rewording for clarity) that merely because a person uses a website/ISP/online service/LAN to infringe copyright, then that by itself means that the system/ISP operator:

  1. Does not infringe the copyright;
  2. Must not be taken to have authorised the infringement of copyright; and
  3. Unless a Court order is breached, is safe from any criminal or civil action.

[The words in bold are important, discussed below.]

This is a fair recognition of the role of website operators and ISPs – that they provide an online facility, venue or set functions and in reality have very little say over how users actually use their systems.

Importantly, the protection of this benefit does not only apply to ISPs. Due to the very wide definition of Internet Service Provider in the Copyright Act (see my post about this here), section 92B protects all websites and other online services, including bricks-and-mortar businesses with LANs.

For example, section 92B should protect you from any threat of civil or criminal liability in the following cases:

  • If you run a business and one of your employees is using your office file server to store copyright-infringing material, without your knowledge.
  • If you run a web application, and a user uploads copyright-infringing material, without your knowledge.
  • If you run a website, and a user uses it to send emails that infringe copyright, without your knowledge.

There are many other examples where section 92B will provide some comfort to operators – perhaps not so much from actual liability, but at least from the threat of liability (e.g. an intimidating letter from a law firm).

However, the common element of the examples above is that the infringement must be “without your knowledge”. As noted in earlier, if a person uses your system to infringe copyright, then that by itself does not make you liable, but if there is “something more” then section 92B may not protect you. The Act does not define what “more” is required to remove the protection of section 92B, and it is therefore up to Courts to decide this over time. It is possible that this section will become the subject of much judicial interpretation.

It is safe to say, though, that if a website or ISP had actual knowledge of specific, repeated instances of copyright infringement by an identified user which continued over a long period, and took no action despite being requested to, then it is unlikely that the website or ISP could rely on section 92B to avoid civil or criminal action.

In other words, section 92B does not remove all responsibility from websites and ISPs. But it does at least provide a substantial and fairer level of protection, above that of many other countries, that better reflects the realities of providing networked services.