Tải bản đầy đủ
[4.2] Section 132AQ: Removing or altering ERM information

[4.2] Section 132AQ: Removing or altering ERM information

Tải bản đầy đủ

Chapter 6
ERM information is not copied, it is not actually removed from the original copy. It is simply never
transferred to the new copy. The analogue equivalent would be to not copy the end credits of a film.
The manner in which the subsection is phrased does not accurately reflect this process. It suggests
that the ERM information must actually be removed from a copy of the work. This problem is equally
applicable to the second subsection, where the conduct consists of altering ERM information. 827
It may be difficult to successfully argue this interpretation in court. It does not correspond with the
purpose 828 of the Copyright Act 1968 (Cth) and the courts may give a wider construction of the word
“removes”, without regard to the technicalities of the copying process.
ERM information can be removed or altered without creating an additional copy. Audio, video or
picture files that are stored on a computer hard disk drive can be renamed. If the filename contains
ERM information then changing the filename could constitute altering ERM information. Many of
these files also contain metadata consisting of ERM information, all of which can be removed or
altered with specialist computer programs 829 without making a new copy. It has been alleged that
the website Facebook routinely strips the metadata from photographs that are uploaded to its
website. 830
[4.2.2] “the person does so without the permission of the owner or exclusive licensee”
This subsection of the offences requires legislative clarification. It is unclear if it is intended to be a
distinct element to the offence, or a qualification to the conduct element. The distinction is
important. If the subsection is characterised as a qualification to the conduct element, the evidential
burden is borne by the defence to prove that permission has been given. 831 If the subsection is
characterised as an element of the offence, the prosecution would have to prove that no permission
was granted, and in the case of the indictable and summary offence to prove that the fault element.

827

Copyright Act 1968 (Cth) ss 132AQ(1)(b)(ii) and (3)(b)(ii)
Acts Interpretation Act 1901 (Cth) s 15AA (“In the interpretation of a provision of an Act, a construction that
would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in
the Act or not) shall be preferred to a construction that would not promote that purpose or object.)
829
See generally - http://lifehacker.com/#!5149327/jpeg--png-stripper-removes-the-metadata-from-yourimages (Accessed 22 February 2011); http://www.becyhome.de/becypdfmetaedit/description_eng.htm
(Accessed 22 February 2011); http://www.sobolsoft.com/removemetadata/ (Accessed 22 February 2011)
830
See http://www.plagiarismtoday.com/2008/11/05/facebook-flickr-strip-copyright-data-from-images/
(Accessed 22 February 2011)
831
Criminal Code Act 1995 (Cth) sch 1 s 13.3(3)( “A defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification provided by the law creating an offence bears an evidential burden in
relation to that matter.”)
828

157

Offences in the Copyright Act 1968(Cth): Will They Be Effective?
The task of characterising the subsection is further complicated by the absence of a definition of
“permission” in the Act. This would suggest that the permission could be express, implied or
conditional. Other sections in the Copyright Act 1968 (Cth) where permission is intended as a
defence are clearly and expressly stated. Section 132APC(2) is clearly stated as a defence for
circumventing an access control TPM. This suggests that the subsection would be drafted in the
same manner if the legislative intent was for it to be a defence or qualification.
If the subsection is interpreted as an element of the offence, it would be a physical element
consisting of a circumstance which does not state a fault element. The fault element given by the
Criminal Code Act 1995 (Cth) for both the indictable and summary offences would therefore be
recklessness. 832 In order to discharge the legal burden of proof, the prosecution would have to
prove, beyond a reasonable doubt, that the defendant:
(1) did either of the acts in s 132AQ(1)(b) or (3)(b);
(2) they intended to do either of the acts in s 132AQ(1)(b) or (3)(b);
(3) without the express, implied or conditional permission of either the owner or exclusive
licensee;
(4) the person was aware that there was a substantial risk that they did not have the express,
implied or conditional permission of either the owner or exclusive licensee; and
(5) having regard to the circumstances known to him or her, it was unjustifiable to take the risk.
Additionally, a person accused of the offence could invoke the defences of mistake or ignorance of
fact 833 and claim of right, 834 and would have the evidential burden of adducing or pointing to
evidence that suggests a reasonable possibility 835 that they were mistaken or ignorant that there
was a substantial risk that they did not have the express or implied permission of the copyright
owner or exclusive licensee.
If the competing interpretation is accepted, it would mean that the prosecution would have to
prove, beyond reasonable doubt, that the person
(1) did either of the acts in s 132AQ(1)(b) or (3)(b); and
(2) they intended to do either of the acts in s 132AQ(1)(b) or (3)(b)

832

Criminal Code Act 1995 (Cth) sch 1 s 5.6(2)
Criminal Code Act 1995 (Cth) sch 1 s 9.1
834
Criminal Code Act 1995 (Cth) sch 1 s 9.5
835
Criminal Code Act 1995 (Cth) sch 1 s 13.3(6)
833

158

Chapter 6
The defendant would have the evidential burden of adducing or pointing to evidence that suggests a
reasonable possibility that they had actually had express, implied or conditional permission. If the
defendant was unaware that there was a substantial risk that they did not have the express or
implied permission of either the owner or exclusive licensee or they were mistaken or ignorant of
that fact, they could still be guilty of the offence if the other elements of the offence are made out
since the mistaken belief would not negate the fault element.
It is clear that the second interpretation produces a more onerous environment for a defendant
accused of the offence. This is not sufficient to decide which interpretation is correct, as the practice
of resolving the meaning of ambiguous words in favour of defendants has fallen out of favour with
the Australian courts. 836 There is no real ambiguity in the meaning of the words in the subsection, it
is the characterisation of the subsection within the framework of the Criminal Code Act 1995 (Cth)
which produces the ambiguity.
No definitive answer can be ascertained in relation to this interpretation problem. The first
interpretation would appear to be the better view, since the competing interpretation would mean
that the defence or qualification has been drafted entirely differently from other defences in the
Copyright Act 1968 (Cth). There is also a specific section in s 132AT that provides defences available
for any offence in Subdivision F. If the legislative intent was that the burden of proof of permission is
to borne by the defendant, it is likely that a permission defence would be housed with the other
defences. If the matter is ever contended, the courts may be prepared to resurrect the rule for the
construction of penal sections. The High Court has suggested this approach on occasion, 837 and an
application of the purposive approach to statutory interpretation does not resolve the ambiguity.
[4.2.3] “the removal or alteration will induce, enable, facilitate or conceal an
infringement of the copyright”
This element of the offence mirrors the wording of Article 12 of the World Intellectual Property
Organisation Copyright Treaty. 838 While this ensures Australia meets the treaty obligation, the treaty
text does not translate easily into the framework of the Australian federal criminal law.

836

See generally: Beckwith v R (1976) 135 CLR 569; Deming No 456 Pty Ltd v Brisbane Unit Development Corp
Pty Ltd (1983) 155 CLR 129; Waugh v Kippen (1986) 160 CLR 156; Chew v R (1992) 173 CLR 626; R v Lavender
(2005) 218 ALR 521; MacAdam, A.I. and Smith, T.M., Statutes: Rules and Examples (3rd ed, 1993) 298; Pearce,
D.C. and Geddes, R.S., Statutory Interpretation in Australia (6th ed, 2006) 284
837
One of the more pertinent occasions indirectly concerned a copyright offence. See the quote at
paragraph [3] above from Stevens v Kabushiki Kaisha Sony (2005) 221 ALR 448
838
World Intellectual Property Organisation Copyright Treaty, opened for signature 20 December 1996, [2007]
ATS 26, art 12

159

Offences in the Copyright Act 1968(Cth): Will They Be Effective?
This element requires the prosecution to prove that the removal or alteration of ERM information
impacts an unspecified infringement of copyright that has yet to occur. Some analogy can be drawn
to attempts at offences where the result does not occur. However, in Commonwealth offences a
person can only be guilty of an attempt at an offence if it is proved that they had intention or
knowledge for each physical element of the offence 839 and that their conduct was more than
preparatory to the commission of the offence. 840 This provides a safeguard against a conviction of
attempting an offence where people have only recklessly engaged in conduct, and where no result
has occurred. A person could not be convicted of attempted murder if they recklessly fire a gun at a
chair, simply because someone else might have been sitting in it.
One interpretation of this element is that it assumes a result at some open ended point in time. It
does not require a measurement of the likelihood of the other outcome occurring. If this were the
intention it would state “the removal or alteration makes it easier to induce, enable, facilitate or
conceal an infringement of the copyright”. If the element used these words, it would be capable of
being proved by expert opinion.
The time period within which the ultimate infringement of copyright occurs is unstated, so this
means that the induced, enabled, facilitated or concealed infringement may occur at any time until
copyright no longer subsists in the work or other subject matter. For a photograph taken by a
healthy twenty year old Australian this would be 130 years. 841 This provides a large window of
opportunity for an infringement to take place, and presumably the greater the window of
opportunity the greater the chance of an infringement taking place. This is an impossible task for the
courts and that this could not be intent of parliament or the purpose of the subsection.
An alternate interpretation is that the result is hypothetical: if an infringement were to take place or
was contemplated by a third party, if the result of the conduct of the defendant would have
enabled, induced, facilitated or concealed the infringement. This interpretation allows a more
objectively certain outcome than the first interpretation.
Any of the listed acts will complete the offence and any type of infringement will suffice, but if the
defence could eliminate enabling, facilitating and concealing an infringement, it is unclear what
qualities the hypothetical person induced into infringing copyright would possess. If the induced

839

Criminal Code Act 1995 (Cth) sch 1 s 11.1(3)
Criminal Code Act 1995 (Cth) sch 1 s 11.1(2)
841
This is based on a life expectancy of 80 years. The actual life expectancy of an person born in Australia is 81
years according to the World Bank – see http://data.worldbank.org/country/australia (Accessed 2 March 2011)
840

160

Chapter 6
person is a reasonable person, the act of removing or altering ERM information would have to be
deceptive. It would be unusual for a court to find that a reasonable person infringes copyright simply
because they did not know that copyright exists in the work.
The fault element for this physical element varies between the indictable and summary offences.
Recklessness 842 is the fault element for the indictable offence and negligence 843 is the fault element
for the summary offence. The strict liability offence has no fault element.
In common with the various offences of making or possessing a device for making an infringing
copy, 844 this offence penalises conduct that is preparatory. No infringement of copyright is
necessary, and there is no property right in ERM information. Once again, a person could find
themselves convicted of a crime for taking preparatory steps to commit a minor tort.
For example, A takes a photograph of B at a party using a digital camera and calls the picture file
“[A’s name]_B at a party” and emails it to B. B likes the photograph and uploads it to a social
network site without asking A, but changes the filename to “Me at a party”.
B would be criminally liable under one of the offences in s 132AQ. Copyright subsists in the work and
A is the owner of the copyright. B has altered the ERM information which identifies A as the owner
and identifies “B at a party” as the title of the work. B has done so without A’s permission. The
absence of the ERM information could conceal B’s infringement by copying and communicating A’s
work. If A were to sue B for infringing his or her copyright by communicating the work, the damages
recovered by A are likely to be quite minor, unless A is a professional photographer. B, in contrast,
could be imprisoned for five years if charged under the indictable offence. While a prosecution
might be an unlikely outcome, the facts of this hypothetical scenario are common place.

[4.3] Section 132AR: Distributing, importing or communicating copies after
removal or alteration of ERM information
Section 132AR [see Appendix at page 352] contains offences for distributing, importing or
communicating copies after the electronic rights management information has been removed or
altered. There is some overlap between s 132AR and the offences in ss 132AH 845 and 132AI, 846 which

842

Criminal Code Act 1995 (Cth) sch 1 s 5.6(2)
Copyright Act 1968 (Cth) s 132AQ(3)(d)
844
Copyright Act 1968 (Cth) s 132AL
845
Copyright Act 1968 (Cth) s 132AH
846
Copyright Act 1968 (Cth) s 132AI
843

161

Offences in the Copyright Act 1968(Cth): Will They Be Effective?
are discussed in Chapter 5 at paragraphs [4.6] and [4.7]. However, there are however some
important differences between these offences.
First, the work or other subject matter does not need to be an infringing copy as it does for the
offences in ss 132AH and 132AI. This means that licensee may still be liable for the offences. For
example, a person who has been granted a licence to reproduce the copyright work, but does not
copy the ERM information embodied in the work and then distributes the copy.
Second, in all three of the offences under this section, communication is distinguished from
distribution. For the indictable and summary offences that involve distribution 847 there must be an
intention of trading or obtaining a commercial advantage or profit. 848 The strict liability offence
modifies this somewhat, but the nexus between commercial activity and the distribution remains. 849
As stated in the previous chapter, except for offences related to TPMs in Subdivision E, distribution
includes by way of communication. 850 Here in contrast, the three offences can also be committed by
communication, 851 but the act of communicating the copyright material does not require either an
intention or nexus to trading or of obtaining a commercial advantage or profit.
Nor does the communication need to be to the extent that it affects prejudicially the owner of the
copyright. 852 A single non-commercial communication is sufficient. This makes a communication of a
work or other subject matter a far easier element to prove in s 132AR than in s 132AI. A
communication does not require a second person to receive the communication. It merely requires
that a work or other subject matter is transmitted electronically over a path. The definition in s 10(1)
states:
“communicate means make available online or electronically transmit (whether over a path,
or a combination of paths, provided by a material substance or otherwise) a work or other
subject-matter, including a performance or live performance within the meaning of this
Act.” 853
A person could potentially be liable for communicating a copyright work even if they own and are
operating both computers. The inclusion of a strict liability offence, which does not require any

847

Copyright Act 1968 (Cth) ss 132AR(1)(1)(b)(i) and (3)(b)(i)
Copyright Act 1968 (Cth) ss 132AR(1)(1)(b)(i) and (3)(b)(i)
849
Copyright Act 1968 (Cth) s 132AR(5)(b)(i)
850
Copyright Act 1968 (Cth) s 132AA “distribute”
851
Copyright Act 1968 (Cth) ss 132AR(1)(1)(b)(iii), (3)(b)(iii) and (5)(b)(iii)
852
Cf Copyright Act 1968 (Cth) ss 132AI(2)(d) and (5)(d)
853
Copyright Act 1968 (Cth) s 10
848

162