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[3.8] Section 248PH: Unauthorised copying of authorised sound recording

[3.8] Section 248PH: Unauthorised copying of authorised sound recording

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
If a sound recording is not embodied in part of an article or thing that embodies visual images or is
embodied separately for use in conjunction with embodied visual images, the sound recording will
simply be another sound recording.
The offences consist of five physical and fault elements, except for the strict liability offence which
obviously contains no fault elements. These elements are illustrated in Table 5 below:
Table 5 Physical and Fault Elements in s 248PH

Physical Elements (indictable and summary offences)

Indictable offence fault

Summary offence fault

elements

elements

“the person makes a copy of a sound recording of a

Intention that the copy

Intention that the copy

performance”

be used in a sound-

be used in a sound-track

track
Recklessness

Recklessness

Recklessness

Negligence

“the sound recording is an authorised recording”

Recklessness

Recklessness

“the making of the sound recording was not authorised

Recklessness

Negligence

“the copy is made during the 20-year protection period
of the performance”
“the copy is made without the authority of the
performer”

for the purpose of use in that or any other sound-track”

The strict liability offence alters the first element of the offence slightly, since it cannot contain a
fault element: “intending that the copy be used in a sound-track” becomes “in preparation for use in
a sound-track”. Once again, this physical element will be difficult to prove if the preparation only
exists inside the mind of the person making the copy.
[3.8.1] “the sound recording is an authorised sound recording”; “the making of the sound
recording was not authorised for the purpose of use in that or any other soundtrack”
The combination of these elements of the offence makes the scope of this offence considerably
narrow. Only authorised recording are covered under the scope of this offence, so where a sound
recording is an unauthorised recording, the correct section under which to prosecute would be
s 248PF, discussed above at paragraph [3.6].

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Chapter 7
Exempt recordings do not fall under the scope of this offence, so only where the performer has
given authority for the sound recording to be made will this offence apply. Further, if the authority
was given for the sound recording of a performance to be used in a particular sound-track, the use of
the sound recording for an alternative sound-track would not satisfy the fifth element of the
offence.
If it is accepted that conditional authorisation can exist for the purposes of the offences in Part XIA,
it is difficult to imagine exactly when this offence will be capable of being prosecuted. It is highly
unlikely that a performer will give carte blanche authorisation for sound recording of a performance
to be made, and only in such unusual circumstances is it possible for these offences apply.

[3.9] Section 248PI: Selling etc. unauthorised recording
Section 248PI [see Appendix at page 374] contains offences for commercial dealings in an
unauthorised recording. It contains three offences tiered by culpability. All of the offences consist of
three physical elements, with corresponding fault elements for the indictable and summary
offences. The first element is the doing of an act with a recording of a performance, either:
(1) selling;
(2) letting for hire; or
(3) by way of trade offering or exposing for sale or hire.
These concepts are discussed in Chapter 5 at paragraphs [4.2.4], [4.2.5], [4.4.2] and [4.4.1]. The fault
element for this element is intention in both the indictable and summary offences. 969 The act must
be done within the protection period of the performance and since s 248CA applies to this
section, 970 this can either be 20 or 50 years depending on whether the recording is a
cinematographic film or a sound recording. The fault element for this physical element is
recklessness. 971 The recording must be an unauthorised recording. The fault element for this
circumstance element is recklessness 972 in the indictable offence and negligence in the summary
offence. 973

969

Criminal Code Act 1995 (Cth) sch 1 s 5.6(1)
Copyright Act 1968 (Cth) s 248CA
971
Criminal Code Act 1995 (Cth) sch 1 s 5.6(2)
972
Criminal Code Act 1995 (Cth) sch 1 s 5.6(2)
973
Copyright Act 1968 (Cth) s 248PI(3)(c)
970

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
[3.9.1] “a recording of a performance”
The offences only apply to recordings, and as discussed above at paragraph [2.2], a recording is not a
record if it is an exempt recording. This might suggest that the offences in this section do not apply
to recordings which are exempt recordings. However, an exempt recording may lose its status as an
exempt recording if it is used for a purpose for which it is made under s 248C. 974
This presents two problems. It is unclear whether a sale or other dealing will extinguish the exempt
status at all, and if it does, ascertaining the exact point in time when the exempt status of the
recording is extinguished. The solution is indicated by closely reading the definitions of exempt
recordings.
Under subsection (a) of exempt recording 975 for instance, an indirect cinematographic film is exempt
if it is made solely for the private and domestic use of the person who made it. One view might be
that part of the private and domestic use of a person is the ability to sell the recording, especially
through a private sale. The competing view would be that this is not a private and domestic use and
selling the recording extinguishes its exempt status.
Section 248D states that a cinematographic film is not taken as being made for the private and
domestic use of the person who made it if it is made of the purposes of selling it, letting it for hire, or
by way of trade offering or exposing it for sale. 976 While this is not exactly on point, since a recording
made for private and domestic use can subsequently be sold, it does indicate that the intention of
the legislature was that a sale does not constitute part of private and domestic use. Even if this is
accepted as the better view, the point at which the exempt status is extinguished will be crucial and
it is unclear if this is before the sale, at the point of sale or after the sale.
Under subsection (d) of exempt recordings, 977 an indirect cinematographic film made by, or on
behalf of, the body administering an institute assisting persons with a print disability, solely for the
purpose of the provision, whether by the institution or otherwise, of assistance to persons with a
print disability is an exempt recording. It is quite possible that such a recording could survive a sale
or one of the other acts with its exempt status intact. The exemption does not expressly or impliedly
require the provision of the recording to be made without some sort of payment. It certainly

974

Copyright Act 1968 (Cth) s 248C
Copyright Act 1968 (Cth) s 248CA(1) exempt recording, (a)
976
Copyright Act 1968 (Cth) s 248D
977
Copyright Act 1968 (Cth) s 248A(1) exempt recording, (d)
975

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Chapter 7
contemplates that the recording will be distributed, which is of considerable importance for s 248PJ
discussed below at paragraph [3.10].
Whether an exempt recording can be sold, let for hire, etc. will depend on a judicial interpretation of
s 248C in relation to particular exemptions and it is beyond the scope of this paper to examine every
possible permutation.

[3.10] Section 248PJ: Distributing unauthorised recording
Section 248PJ [see Appendix at page 375] contains offences for the distribution of unauthorised
recordings within the protection period. This section consists of five offences. There are two
indictable offences, two summary offences and one strict liability offence. The section falls under the
operation of s 248CA, so different protection periods apply to different types of performances. The
structure of the section is very similar to s 132AI discussed in Chapter 5 at paragraph [4.7]. However,
in the “commercial” offences under s 248PJ the fault element is limited to the intention of trading,
and disregards an intention to obtain a commercial advantage or profit.
In the “non-commercial” offences the result that the distribution prejudicially affects the interests of
the performer is limited to financial interests rather than a general interest as it is in s 132AE.
Additionally, the s 248PJ non-commercial offences do not contain the words “to the extent that”,
which would suggest that the possible de minimis level of distribution in s 132AI is absent in these
offences.
The concepts of distribution and prejudicial affect are discussed at in Chapter 5 at paragraphs [4.7.1]
and [4.7.3]. In common with the strict liability offence in s 132AI, the conduct element of this
offence alters to “in preparation for, or in the course of trading”. Once again it is difficult to
distinguish intention from “in preparation for”.
Section 248CA applies to this section 978 so the protection period will vary. The distribution must
occur within the protection period for the offence to be committed.
The recording must be an unauthorised recording and this will present the similar interpretation
problems in relation to exempt recordings discussed above at paragraph [3.9.1].

978

Copyright Act 1968 (Cth) s 248CA(4)(h)

199

Offences in the Copyright Act 1968(Cth): Will They Be Effective?

[3.11] Section 248PK: Commercial possession or import of unauthorised
recording
Section 248PK [see Appendix at page 377] contains offences for the possession or import of
unauthorised records. It consists of three tiered offences. Each offence comprises of three physical
elements:
(1) the conduct of possessing or importing into Australia a recording of a performance;
(2) the circumstance that the possession or import occurs during the protection period; and
(3) the circumstance that the recording is an unauthorised recording.
The first physical element in the strict liability of offence is appended by the a requirement that the
possession or import of the recording is done in preparation for, or in the course of either:
(1) selling it;
(2) letting it for hire;
(3) by way of trade offering or exposing it for sale; or
(4) distributing it for the purpose of trade or to an extent it will affect prejudicially the financial
interests of the performer.
In the indictable and summary offences, these four acts form the fault element of intention for the
first physical element, i.e. the possession or import must be accompanied by an intention to do any
of those four acts with the recording.
The concepts of importation and possession in relation to infringing copies are discussed in Chapter
5 at paragraphs [4.6] and [4.8]. The meanings of selling, letting for hire, and by way of trade offering
or exposing for sale are also discussed in Chapter 5 at paragraphs [4.2.4], [4.2.5] and [4.4].
Distribution is discussed above at paragraph [3.10] and in Chapter 5 at paragraph [4.7].
Section 248CA applies to this section, 979 so the protection period will vary according to the type of
recording imported or possessed.
The fault element for the third physical element, that the recording is unauthorised, is different for
the indictable offence and the summary offence and is in fact the only distinguishing point between
the two. In the indictable offence the fault element is recklessness, through the application of s 5.6

979

Copyright Act 1968 (Cth) s 248CA(4)(i)

200