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There’s a lot of copyright-amending legislation floating around in Australia right now. The penultimate piece of the puzzle is the new law on copyright enforcement. You can find it on the Attorney-General’s website, here, together with explanatory material.

The appropriate summary of this law is – my, what a long way we have come. Back when the Spicer Committee was considering what copyright law should look like – a consideration which led to the 1968 Act here in Australia, that Committee was, at best, luke-warm about criminalising copyright:

‘330. Some of us doubt the wisdom of inserting criminal provisions in a copyright Act. We realize, however, that they may be desirable in the case of an offender who is a man of little means. Also, it might be said that infringement of copyright somewhat resembles stealing, which is, of course, the concern of the criminal law. In addition, as the provision has been in operation for many years we are not disposed to recommend its repeal…’

How things have changed. Now, we have some unprecedented moves in criminal copyright enforcement:

1. there will now be offences of strict liability – that is, offences for certain commercial dealings in copyright material which do not require proof that the person knew they were dealing with infringing material;
2. a system of ‘on the spot fines’ for copyright infringement.

The offences of strict liability

If this law passes, Australia will suddenly have offences of strict liability in copyright law. Let us pause a moment to appreciate how unprecedented that is. The UK does not have offences of strict liability in copyright law. As far as I know, the US does not have offences of strict liability in copyright law. This year’s proposal by Europe for a Directive on criminal provisions in IP enforcement proposes criminal law only in cases of intentional infringements of an IP right on a commercial scale. Help me here people – are there other countries with offences of strict liability in the case of copyright infringements?

Here’s a list of the offences of strict liability that are going to be created by this new law:

1. making an article which is an infringing copy, in preparation for selling it or gaining a commercial advantage or profit;
2. offering or exposing infringing copies of a work for sale;
3. exhibiting an article by way of trade in public where the article is an infringing copy
4. importing an article into Australia with the intention of selling it, hiring it out, offering it for sale, distributing it for trade etc if it is an infringing copy;
5. distributing articles which are infringing copies in trade, or where the extent of the distribution affects prejudicially the owner of copyright;
6. possessing an article, in preparation for or in the course of selling it, hiring it out, exposing it for trade, or distributing it to an extent that prejudicially affects the copyright owner;
7. making, or possessing a device, which is to be used for copying, where the resulting copy will be an infringing copy;
8. performing a work at a place of public entertainment (where the performance is an infringement); and
9. causing a sound recording to be heard, or a film seen, at a place of public entertainment.

There’s some others too, relating to removal of rights management information, but these will do for the moment. In general, these offences of strict liability are punishable by 60 penalty units – or $6600.

Now let me emphasise again: what strict liability means is that a person can be liable for these offences in the absence of proof that they knew they were dealing with infringing copies or performances that were infringements..

Personally, I find it very strange that we would have these provisions without a requirement of knowledge. This is way outside the international norm, which criminalises intentional acts only. Can anyone enlighten me as to what is going on here?

It’s interesting too, when you combine it with the other particularly interesting part of this law.

On the spot fines?

There’s another rather interesting little provision in this Exposure Draft: s133B. That provision says:

(1) The regulations may make provision enabling a person who is alleged to have committed an offence of strict liability against this Division to pay a penalty to the commonwealth as an alternative to prosecution.
(2) The penalty must equal one fifth of the maximum fine that a court could impose on the person as a penalty for that offence.’

What is this? Well, the explanatory material explains:

The strict liability offences will beunderpinned by an infringement notice scheme that will be included in regulations … this will give policy and prosecutors different options depending on the seriousness of the relevant conduct. For example, the police will have the option of issuing an infringement notice to a person who has allegedly committed a more minor offence, or pursuing an indictable offence for alleged serious offenders.

It sounds like traffic fines. Basically, on the spot fines. They catch you, you get a notice, you pay up.

Now, in theory, there’s something to be said for a kind of ‘traffic fine’ type system for copyright enforcement. Lemley and Reese more or less argue for systems along those lines to encourage copyright owners to go after copyright infringers, rather than the people who design technology that infringers use. The problem is, when Lemley and Reese were talking about this, they were basically talking about uploaders to P2P systems, and they had numerical limits – for example, uploading say 50 music files over a particular period. The limits on this kind of liability in the provisions being proposed by government are nowhere NEAR as clear.

The problem is that so many activities infringe copyright these days; so many things are infringing copies – that removing the knowledge requirement has a significant, expansionary effect – and potentially serious threat value.

Should this be considered worrying?

Now, I don’t like being a Cassandra, predicting doom and problems at every turn. So let’s think whether there is really a problem here.

First, let’s think about what the government is trying to achieve. According to the Attorney-General, the motivating impulse of much of this copyright reform legislation can be summarised thus:

Makes sense. Now let’s think about some of the activities that could give rise to on-the-spot fines under the new law:

1. File-sharing. If you see a police officer looking over your shoulder at your laptop at any point, make sure you do NOT have Kazaa running on your desktop. She could issue you with a fine. Since it is supposed to be set at 1/5 of the maximum fine, I assume that means the on the spot fine is $1320 (per infringement); or
2. Playing music at your wedding, or, god forbid, singing a copyrighted song at your wedding or birthday party which is held in a place of public entertainment.

Or something which might be more serious? Selling your iPod with music on it. Because the copies on your iPod are infringing copies once you deal with them (that’s the rule, in the format-shifting exception).

So. Stronger, unprecedented criminal law. Drafted in such a way that it does in fact capture many ordinary acts. And, unfortunately, many provisions without knowledge requirements. Welcome to the new copyright world. I’m most disappointed.