LawFont.com

AFACT have responded to my supplementary submission to the Senate Legal and Constitutional Affairs Committee, which I blogged about yesterday. I would have noted this earlier but I didn’t know it was there – sorry!

If you are interested in the criminal issues, you should read AFACT’s response, because it does assist to identify the situations which AFACT are most concerned about, and where they are most keen for the laws to be enforced.

Reading their response made me deeply regretful of three things:

1. I regret that my comments have been perceived as scare-mongering. It has not been my intention to ‘scare-monger’ at any point. I have sought to highlight, through example, the breadth of the laws as drafted. I stand by the view that they are unjustifiably broad, particularly given an international legal standard which says that criminal law should apply to ‘wilful copyright infringement on a commercial scale’. I do not believe, nor does the AFACT response suggest, that any of the scenarios that I have outlined inaccurately represent how the law applies on its face.
2. I regret that there has been no public review process over these laws. It would have helped us all a great deal if there had been a very clear Issues Paper, clearly identifying the kinds of situations intended to be caught by the laws. To some extent, we are all flailing around in the dark here because the laws were introduced with little explanation of the situations to which the laws are intended to apply, and no real discussion of those. I have asked the Department whether there is a public document that seeks to outline the situations in which the laws are anticipated to be applied, and have been told that there really isn’t one.
3. I regret that the Guidelines have not been drafted and released at the same time as a public review of the laws. If we knew when, and how, police discretion was to be guided in the enforcement of these laws, we would have a much better idea if there were areas of real concern.

Having read AFACT’s response, I do feel that there are several matters to which I should respond. I will quote AFACT’s response, and include my responses underneath.

Her paper adopts the basic premise that copyright infringement should be considered acceptable unless it is on a commercial scale and that the law should be changed to reflect that belief. That it should be reasonable to record the film or concert ‘you are enjoying’ – completely ignoring the fact that over 90% of the 13 million pirate movies sold or the 11 million downloaded in Australia in 2005 started life with a person copying the film in a cinema with an ordinary camcorder. She implies that the existing civil and criminal laws are adequate to address this problem – they manifestly are not.

It is simply wrong and deeply flawed to suggest that theft is not a crime because the motivation is for ‘personal use’.

The argument has even less merit when the justification is not even argued to be based in “need”, but is based on a self indulgent appeal to personal gratification. Surely Ms Weatherall can not seriously champion a right to infringe copyright on the basis that one is ‘enjoying’ a concert or because one is a ‘fan’: “I like it so I should be permitted to just take it….”

I think this is an inaccurate representation of my views.

First, and most obviously, my submission had nothing to do with copyright infringement per se. I was concerned, in the submission, only with the application of criminal law.

Second, the basic view put forward in the supplementary submission was that if Australia is going to go out on an international limb, and introduce a system for strict liability and infringement notices for copyright infringement, then there there is nothing wrong with doing it incrementally, rather than taking that approach across the board.

What I think we should do is identify the target situations – those where there is evidence of a real problem that could be addressed through a system of fines – where it is important for police to have these additional powers of enforcement. I had been under the impression – and maybe I’m wrong, because as noted above, there is no public document identifying the situations which are supposed to be targeted by this law – that the main areas of rising concern were:

• people making, and selling, counterfeit products on a commercial scale for sale in markets;
• backyard operators who are making and selling copies of films and CDs – maybe out of their garage, but at least on a commercial scale.

My view therefore was that these situations could be targeted by imposing strict liability and infringement notices at situations where an activity was done for sale or hire or with commercial intent.

It is unfair to suggest that I think that people should be able to record movies on camcorders. As far as I can see, none of the amendments which I suggest would have any impact on people recording movies. I proposed that it should not be a criminal act directly to record a live performance, or that there should be a defence to the criminal act where such a recording is made for private/domestic purposes. That amendment has nothing to do with movies and camcorders, unless I am misunderstanding the scope of these laws.

Personally, I don’t think that making a recording, for private/domestic enjoyment/re-living, of a concert you are at should be a criminal offence. Others are free to disagree, but the strong impression I’ve been getting is that I’m not alone in thinking this should be ok. distributing/selling is different. Slap the criminal offence on there.

Tax evasion has a purely personal benefit.
Shop stealing is no less a crime if you steal the goods for your own use.
Fishing when it is prohibited is a crime regardless of any intention to sell or eat the catch.
Why ? Because if we all stole from our local store or all caught the fish the resulting damage would be too great.
Ordinary Australians break the law when they drink drive, when they don’t pay their tax, when they park in the wrong place. In the same way ordinary Australians will risk breaking the laws when it comes to film piracy.

This argument really gets back to my initial objections to strict liability in copyright. I have argued that copyright is different. Because it doesn’t come with signs. You don’t always know when you are infringing it. Because it is not readily understood. And because when you copy copyright material, unlike when you take fish, or steal goods, you are not depriving anyone permanently of property. You are, in some cases and to some extent, depriving people of profit. Which is why the criminal provisions are more appropriately targeted at people working on a commercial scale or selling stuff.

As for tax – yes, we all have obligations to understand and pay tax. But you know what? With tax, we do it once a year, for the most part. copyright? Every day. And with tax, we employ accountants. Does that mean we all need to hire a copyright lawyer now?

Further, the proposed infringements are being demonised as criminalising this behaviour. The proposed legislation does not go that far.
Rather, the effect of the Bill is that behaviour be regulated not criminalised
The AGD has made very clear that the proposed fines are a regulatory measure, they do not generate a criminal record of any kind and must by law be underpinned by strict liability.
Strict liability penalties and fines to deter the behaviour [with the appropriate right for the person to question the fine in court] is the most efficient, effective way for society and police to respond to the lower range of these types of offences.

It is true that Infringement Notices do not give rise to any criminal record – paying up on the fine is not an admission. However:

• if you are convicted of an offence of strict liability, you can develop a criminal record, although as I understand that from discussions, there may be discretion in the court as to whether you do;
• the alternative to paying up on a fine is going to court – in which case, you risk being convicted of an offence of strict liability.

Her submission regarding sections 132AD, AF, AG, AH, AI, AJ, PJ and QE have no merit on the arguments put forward as they clearly apply only to activity for profit, trade or distribution to an extent that is prejudicial to the copyright owner.

In relation to sections 132AD, AF, AG, AH, AI, and AJ I proposed that the government should remove the phrase ‘obtaining a commercial advantage or profit’. That is, a person should be strictly liable for making, selling or hiring out a copyright work, but not for making a copyright infringement ‘with the intention of obtaining a commercial advantage’. The concern I have here is that liability for the purpose of ‘obtaining a commercial advantage’ means that the provision covers situations where a person – or more importantly, a business – makes a copy of something for internal (ie non-selling) use. I do not think that the criminal law should apply there. That is an appropriate area for civil law. A business that is internally making inappropriate copies can be sued, and if necessary, take out a license.

In relation to sections 132AI, 132AJ, 248PJ and 248QE I proposed that there should be no strict liability in cases where a person distributes copyright infringing material ‘to an extent that affects prejudicially a copyright owner’. My objection to this provision is that ‘prejudice’ is a very unclear concept, and potentially, quite a low threshold (is distributing to 3 people ‘prejudice’? Arguably).

I pointed also to US law which applies criminal provisions where the value of the infringements over an 18 month period is over $1,000. That is a clear, numerical limit. ‘affects prejudicially’ is highly uncertain, and, it seems to me, not something a police officer should be required to judge. An alternative solution is, of course, to have something in the Guidelines that imposes some kind of numerical or value limit, so that the criminal provisions apply, for example, where you are infringing on a mass (commercial type) scale.

An appropriate response to the concern that penalties in sections 132 AN, AO, … are too high for behaviours that could be considered to be “innocent” or merely misguided [in the sense they are not believed to be motivated by a desire for an unacceptable level of profit], would be to introduce a simple “first infringement” provision limiting the strict liability penalty to one single infringement once only, carrying a smaller fine, with a “second or subsequent infringement” provision arising from a later repeat of the same behaviour carrying the currently proposed levels of penalty.
This would meet Ms Weatherall’s concerns and remove the public’s perception that such behaviour is acceptable because it will never be penalized.

Sections 132AN and 132AO make it an offence to cause a literary, dramatic or musical work, or film or sound recording, to be performed/heard/seen in public at a place of public entertainment. I suggested that the offences should be confined to people in charge of, owning, or controlling the places of public entertainment, so that playing your radio too loud at the restaurant isn’t a criminal offence. I’m not sure I understand, therefore, AFACT’s response. Are they in fact suggesting that people who happen to be in public places who play their radio too loud, should be subject to low fines? Again, I’m just not sure what this law aims at unless it is confined in the way I suggest.

Virtually all DVD burning operations closed down under our existing laws by police have been located in the offender’s home using ordinary computer equipment and an internet connection. It is patently unreasonable and scare mongering to suggest police will use the infringement notice scheme to fine people for merely owning a computer.

In other words, this is an argument that the law, on its face, should criminalise owning a laptop computer or DVD burner – without intent to use it for copyright infringement – because some people with DVD burners should be caught. I am not able to accept that that is appropriate. It seems to me that the people who are desired to be charged – the backyard burning operation – will be chargeable under other offences, such as making copies for sale, or selling copies. If there is not evidence, when the police turn up, of such copies – if the only evidence is the presence of a computer and DVD burner – then on what possible basis is a person going to be charged anyway?

The suggestion that we limit our criminal law so it does not apply to small to medium sized businesses [whose business presumably benefits from using or making infringing copies of copyright works] suggests it is acceptable for petty crime to benefit small commercial businesses but the criminal law should be applied in full force to large businesses ! Does Ms Weatherall intend the law should apply differently to rich and poor people?

No, and I regret if anyone has taken anything I’ve said in such a way. My main concern, in relation to small businesses, is that these criminal laws apply to many acts that can happen inadvertently, and that wouldn’t be considered by most to be criminal. I am NOT thinking of businesses that sell pirate material. I am thinking of businesses that inadvertently use copyright material in producing their own report, software, or product. The cut and pasted photo on the cover of the report. The small part of infringing code in the software.

Frankly, I’m concerned about ALL businesses having to deal with this. But the cost of compliance and training is more significant for small business. In referring to small businesses, too, I am directly raising identical concerns to those raised by the Senate Committee for the Scrutiny of Bills 2002 Report, which recommended:

Strict liability has the potential to adversely affect small and medium enterprise. Steps should be taken to ameliorate any such consequences arising from teh different compliance and management resources of smaller entities’.

Finally, it has been pointed out to me numerous times that the Bill does not introduce new offences; rather, it changes the mental element for offences. That is true. But the Bill is also transparently – and rightly – aimed at making the criminal copyright laws more generally enforceable. The introduction of a tiered system does is make it infinitely more likely that the criminal provisions were enforced against people. When you had to prove intent, and charge someone, the police were not going to target ordinary people or ordinary businesses. Under these rules, they can do so. Just because the laws were there before, doesn’t mean they were drafted at the right breadth before, and with the increased capacity for enforcement of them, we are forced to look closely at their breadth. And we are forced also to keep these concerns in the back of our mind.

As I’ve said before, I regret, of course, if my comments have been taken the wrong way. I have said, repeatedly, that I am prepared to be corrected on anything I’ve written. Even the rushed proposals put – overnight – to the Senate were aimed only at showing that we could have discussion about how to confine these laws. They weren’t meant to be demands, and they were put forward as tentative.

And I reiterate my key regret. If these laws had been the subject of a proper public review, and if there had been a clear statement from the government as to their intended operation and scope, perhaps we wouldn’t be in this difficult, flailing around in the dark debate.