LawFont.com

Sigh. Another day, another copyright story in the media. And no matter how many times I’ve tried to explain the issues to journalists and everyone else, we keep coming back to the same assertions, which betray a poor understanding of what is going on.

Once again now, the simplified version – what do, or don’t, the criminal provisions in the Copyright Amendment Bill do?

1. Does the Copyright Amendment Bill introduce new offences? In general, no, except in 2 areas. In the area of Pay TV, it becomes a criminal offence to access a subscription television service without authorisation. In the area of anti-circumvention law, it becomes a criminal offence to circumvent an access control TPM with the intention of obtaining commercial advantage. In other respects, the law does not introduce new offences. The government’s previous policy was that criminal law shouldn’t intrude into the domestic/private sphere (it wasn’t necessary). The FTA requires a change to that policy.
2. Does the Copyright Amendment Bill expand criminal liability for copyright infringement? Yes, it does, because it introduces strict liability offences. Thus (to generalise), you can now be criminally liable and fined in circumstances where you were not aware of the circumstances that made what you were doing an infringement. For example, if you did not know the copy you were dealing with was an infringement, you wouldn’t have been a criminal before; now you are.
3. Does the bill make it more likely that people will be subject to fines or criminal law? Yes, because the whole aim of the law is to make copyright law more readily enforceable – to give police tools to charge people without having to go through the whole court process. However, the effect on the ground of these laws will depend on what resources police dedicate to their use/enforcement. Last word from the Federal Police was that they hadn’t formed any decided view on the new provisions (!!! You mean they weren’t integrally involved in the drafting?????)
4. Are the criminal provisions targetted at ‘pirates’? On their face, no, because several of the provisions – particularly in the performers’ rights area – don’t require that you be acting for commercial gain or on a commercial scale (the usual definition of ‘piracy’). However, it lies within the power of the government to write guidelines on enforcement in such a way that the laws will not be enforced against ordinary people. We can take some comfort from the AG’s letter to the editor (SMH) last week, which asserted that ordinary consumers would not be targeted. Until the government give us official notification of when the laws are intended to be enforced, we won’t know the effect on consumers.
5. Are you a criminal for using your iPod? On the face of the law as currently drafted, you could be (although the chances of that being enforced are, I would say, slim to none). The analysis works like this:- s132AL makes it a criminal offence to possess a device, which is to be used for copying material protected by copyright, and the copy is infringing. This is a strict liability offence: no intention to use the device for infringing or commercial use is required;

   – copies made on iPods are currently infringing copies (because there is no exception for private copies/format shifting). The new law proposes a format-shifting defence, but on the current draft, that exception does not in fact legalise iPod use (because most iPod use involves people making – and keeping – two copies in mp3 format)

   – thus, if you have an iPod, it (under the current draft) is a device which will be used for making infringing copies – hence possessing it is a criminal offence.

   Now, to avoid this result, all the government has to do is (a) draft the iPod exception properly, to fit the technology, and/or (b) remove the strict liability offence.
   Further, by the way – the government should do both (a) and (b). If they just draft the iPod exception properly, people with iPods may be ok, but people with the next new technological device (like the Zune) won’t be protected from criminal liability.

   Even once the law has been amended in either or both of these ways, you could be criminally liable if you deal in copies on a commercial scale, or distribute them to an extent that prejudices a copyright owner (for example, you sell your iPod with some songs still on it) or use your iPod to record a performance without permission (if this part of the law remains unchanged).

Note one thing. People can point out – as several do, in today’s Australian article – that the criminal provisions are not new, and that is accurate. However, to suggest that these changes are not pretty radical is disingenuous. They might not create new offences, but they do, not insignificantly, expand both the likelihood of being charged, and the scope of liability.

And calling the whole thing scaremongering is a little strange too. Frankly, a lot more scaremongering could be done if people wanted to. Like people could point out that selling 100 CDs could in theory, on the current drafting, lead to a $21 million dollar fine ($4 million on the spot). It won’t of course. No police officer would be that silly. But an issue no one is really talking about is just how high these fines are going to go. With $6,600 ($1320 on the spot) per infringement, and over 30 infringements per CD sold, it could go pretty high, pretty quickly, yes?