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[3.13] Section 248PM: Importing unauthorised recording for exhibition by way of trade

[3.13] Section 248PM: Importing unauthorised recording for exhibition by way of trade

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
are closely related to s 248PL. These offences penalise the importing of recordings prior to engaging
in the conduct prohibited by s 248PL. As such the conduct element in these offences is clearly
importing a recording into Australia. The concept of importation is discussed in Chapter 5 at
paragraphs [4.6.2]. In the indictable and summary offences the fault element for the importation is
the same as the conduct element and related circumstance elements in s 248PM, i.e. an intention to
exhibit the recording in public by way of trade. The strict liability offence modifies the language to
once again attempt to circumvent a requirement for a fault element and maintain the offence as one
of complete strict liability. In common with many of the offences in the Copyright Act 1968 (Cth),
“with the intention of” is therefore altered to “in preparation for”. In reality this alteration is largely
cosmetic, since a prosecutor will still need to prove that the conduct was done as a preparatory act,
and it is difficult to see how this can be done without drawing inference from the actions of an
accused person, in precisely the same manner as one would need to do in order to prove intention.
Nonetheless, in terms of the application of the Criminal Code Act 1995 (Cth), this constitutes part of
the physical element.
The importation must occur within the protection period which varies according to the type of
recording under s 248CA(k). In the indictable and summary offences the accused must be reckless as
to this circumstance. 982 The recording must be an unauthorised recording and the fault element for
this circumstance varies between the indictable and summary offences in exactly the same manner
as the offences under 248PK discussed above at paragraph [3.11].

[4] Part XIA Division 3 Subdivision B – Acts relating to sound
recordings of performances given before 1 July 1995
Subdivision B [see Appendix at pages 380 – 386] contains eight offences which apply only to sound
recordings of performances given before 1995. Each of these offences has an equivalent offence of
more general application as illustrated in Table 3 below. However, the offences of general
application in Subdivision A overlap precisely the same conduct, circumstances and results as the
specialised offences in Subdivision B and are structured in exactly the same manner. The only slight
differences are that since the Subdivision B offences only refer to sound recordings, the protection
period is always 50 years but this is also the case in the overlapping Division A offences that are
subjected to the application of s 248CA. One clear difference is under s 248QB it is only an offence to
possess equipment for copying an unauthorised sound recording, whereas its equivalent offence in

982

Criminal Code Act 1995 (Cth) sch 1 s 5.6(2)

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Chapter 7
s 248PE includes equipment for making an unauthorised recording. The reason for this absence is
the same reason why the offences in ss 248PA and 248PB could not have an equivalent offence in
Subdivision B; it relates to the recording of an actual performance and it is impossible to record a
performance given before 1 July 1995 after the commencement of the subdivision in 2006, it is only
possible to make a copy of a performance given before 1 July 1995.
Table 6 Comparison of Offences in Subdivisions A and B

Subdivision

A

Subdivision

B

Type of offence

offence section

offence section

248PE

248QB

Possessing equipment for making an unauthorised recording

248PF

248QC

Copying unauthorised recording

248PI

248QD

Selling, etc. unauthorised recording

248PJ

248QE

Distributing unauthorised recording

248PK

248QF

Commercial possession or import of unauthorised recording

248PL

248QG

Exhibiting unauthorised recording in public by way of trade

248PM

248QH

Importing unauthorised recording for exhibition by way of trade

This raises the question of whether or not these offences displace the offences in relation to such
recordings in Subdivision A, and to what extent. The inclusion of s 248S might tend to indicate that
the legislature intended that the two Subdivisions were to operate concurrently in relation to sound
recordings made before 1 July 1995. Section 248S states:
“248S Protection against multiple proceedings for the same act
If a single act done in relation to a performance is an offence against Subdivision
A and an offence against Subdivision B, only one of the offences may be
prosecuted” 983
If this is correct, it would be impossible to commit an offence against a Subdivision B offence without
also committing the equivalent offence under Subdivision A, which would immediately render the
purpose of the Subdivision B offences void which is an uncomfortable conclusion.

983

Copyright Act 1968 (Cth) s 248S

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
An alternative explanation for s 248S is that it simply prohibits prosecutors from charging a person
with two offences if, for example, they import a variety of unauthorised sound recordings of
different performances, within the protection period, some of which are predate 1 July 1995 and
some of which postdate 1 July 1995. There is no real logical reason why the legislature would
duplicate a series of offences if there was no intention to displace at least the overlapping
Subdivision A offences. It is likely that this is the better interpretation.
The remaining question to be answered is: if Subdivision B displaces the offences in Subdivision A,
does the displacement apply only where there is an overlap or does it completely displace the
Subdivision A offences. If Subdivision B does completely displace Subdivision A, there are a number
of offences that would not apply to sound recordings made before 1 July 1995: ss 248PA, 248PB,
248PC, 248PD, 248PG and 248PH. If the Subdivision B offences only displace their equivalent
offences in Subdivision A, once again there would really be no purpose in including them, since the
only thing achieved would be that the same conduct is prohibited under a different section.
In No 20 Cannon Street Ltd v Singer & Friedlander Ltd, 984 when faced with similar circumstances,
Megarry J stated:
“Put formally it seems to me that the proper principle to apply if an enactment contains two
similar prohibitions, one wide and the other applying only to a limited class of case wholly
within the wide prohibition, is to treat the wide prohibition as not applying to cases within
the limited prohibition, especially if the limited prohibition is made subject to some
exception and the wide prohibition is not.” 985
In Refrigerated Meat Lines (A/asia) Ltd v Australian Meat and Livestocks Corporation, 986 Deane J held
that:
“Repugnancy can be present in cases where there is no direct contradiction between the
relevant legislative provisions. It is present where it appears, as a matter of construction,
that special provisions were intended exhaustively to govern their particular subject matter
and where general provisions, if held to be applicable to the particular subject matter, would
constitute a departure from that intention by encroaching on that subject matter.” 987

984

No 20 Cannon Street Ltd v Singer & Friedlander Ltd [1974] 2 All ER 577
No 20 Cannon Street Ltd v Singer & Friedlander Ltd [1974] 2 All ER 577, 583
986
Refrigerated Meat Lines (A/asia) Ltd v Australian Meat and Livestocks Corporation (1980) 29 ALR 333
987
Refrigerated Meat Lines (A/asia) Ltd v Australian Meat and Livestocks Corporation (1980) 29 ALR 333, 347
985

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The only sensible conclusion that can be drawn from these authorities, and from the fact that
alternative constructions would render Subdivision B a superficial addition to Part XIA, is that
Subdivision B is intended to be an exhaustive regime of offences in relation to sound recordings
made before 1 July 1995 and therefore Subdivision A does not apply to such recordings. It would be
of great benefit if this was made clear in s 248P.

[5] Conclusion
Perhaps the greatest problem with the offences in Part XIA is their complexity. As Professor
Geraldine Szott Moohr correctly observes, criminal laws are most effective when the prohibition is
written in absolute terms: “Thou Shalt Not” rather than “Thou shalt Not Under Certain
Circumstances and Certain Conditions.” 988 The performers’ protection offences fall squarely within
the latter category. Even with many years of legal training they are difficult to understand. It would
be ludicrous to expect a lay person to be able to read these offences and abide by them.
The offences are not complemented by any known social norm, and once again they are capable of
being applied to quite innocent and harmless behaviour. Due to the broad definition of
performance, conduct such as recording a children’s school performance will attract the operation of
the offences.
The conduct that these offences are designed to curtail is being overtaken by technology. In
previous technological eras the recording of concerts by well-known artists would have been capable
of generating illicit income for the person responsible for the recording. The technological
innovations in mobile telephones and the availability of websites such as YouTube means that
virtually anyone can record a concert and distribute the recording with little effort or expense. Many
new mobile telephones have the ability to record video and sound.
Although the prohibited conduct is likely to occur in a public place and detection of these offences is
far easier than an activity such as file sharing, this is unlikely to improve the efficacy of these
offences as a deterrent. There can only be a deterrent value if there is an awareness of the sanction
and the penalty that it imposes. The absence of a social norm prohibiting the recording of an event
and its distribution online will mean that these offences will continue to be breached.

988

Moohr, G.S., ‘Defining Overcriminalization Through Cost-Benefit Analysis: The Example of Criminal
Copyright Laws’ (2005) 54 American University Law Review 783, 797

205

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PART III
Analysis, Recommendations and
Conclusions

This part will analyse the specific provisions of the Copyright Act 1968 (Cth) against the theoretical
conclusions drawn from Part I and make recommendations for the improvement of the regulatory
environment for copyright works and other subject matter.

207

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Chapter 8

Analysis and Recommendations
[1] Introduction

In the preceding Part II of this thesis, the analysis of the offences revealed that a number of sections
in the Copyright Act 1968 (Cth) contain substantial problems which require immediate
consideration. The first part of this chapter details these flaws in the legislation, and makes remedial
recommendations to cure the deficiencies that have been identified.
The second part of this chapter applies the theoretical framework established in Chapter 3 to the
offences analysed in Chapters 5, 6 and 7. The analysis consists of identifying the harm caused by
copyright infringement, who or what is harmed, and measuring the magnitude of the harm. This will
show whether the extent of the harm can legitimately justify the attachment of criminal liability in
each offence section. Social norms theory will then be applied to the offences and the probability of
the offence sections being obeyed in the absence of detection and prosecution by law enforcement
authorities will be considered.
The final part of this chapter assesses the extent to which the Australian Parliament can modify the
offence sections while still meeting its treaty obligations. These findings will form the basis of more
substantial recommendations for legislative changes in the offence sections so that they are better
supported by the social norms of consumers of copyright works and are more consistent with the
harm principle.

[2] Remedial Recommendations for the Current Regime of Criminal
Sanctions
This part of the chapter examines the major flaws in the current offence provisions caused either by
drafting errors or by ineffective or inappropriate attempts to accommodate the copyright offences
within the framework provided by the Criminal Code Act 1995 (Cth). In doing so, a purely doctrinal
approach is adopted, without reference to the theoretical framework in Chapter 3.
Recommendations are made for changes to remedy the defects identified in the offence provisions
as they presently stand.

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

[2.1] Strict Liability Offences
There is a strong argument that the mass of strict liability offences which were included in the
Copyright Amendment Act (2006) should be reconsidered on a case by case basis in accordance with
the principles recommended by the Senate Standing Committee for the Scrutiny of Bills in the report
Application of Absolute and Strict Liability Offences in Commonwealth Legislation. 989 The report
stated as a basic principle:
“[...] fault liability is one of the most fundamental protections of criminal law; to exclude this
protection is a serious matter [and] strict liability should be introduced only after careful
consideration on a case-by-case basis of all available options; it would not be proper to base
strict liability on mere administrative convenience or on a rigid formula”. 990
Further to this:
“[...] strict liability should, wherever possible, be subject to program specific broad based
defences in circumstances where the contravention appears reasonable, in order to
ameliorate any harsh effect; these defences should be in addition to mistake of fact and
other defences in the Criminal Code Act 1995 (Cth). Strict liability offences should, if
possible, be applied only where there appears to be general public support and acceptance
both for the measure and the penalty” 991
The Explanatory Memorandum to the Copyright Amendment Bill 2006 (Cth) justified the
implementation of the strict liability offences simply by stating the following:
“copyright piracy is becoming easier and the law needs to be constantly updated to tackle
piracy” 992
And:
“The strict liability offences will be underpinned by an infringement notice scheme in the
Copyright Regulations 1969. This will give police and prosecutors a wider range of
enforcement options depending on the seriousness of the relevant conduct.” 993

989

Senate Standing Committee for the Scrutiny of Bills, Commonwealth Parliament, Application of Absolute
and Strict Liability Offences in Commonwealth Legislation (2002)
990
Senate Standing Committee for the Scrutiny of Bills, Commonwealth Parliament, Application of Absolute
and Strict Liability Offences in Commonwealth Legislation (2002) 283
991
Senate Standing Committee for the Scrutiny of Bills, Commonwealth Parliament, Application of Absolute
and Strict Liability Offences in Commonwealth Legislation (2002) 283
992
Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) General Outline

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Chapter 8
While it is difficult to contradict the first quoted statement from the Explanatory Memorandum, and
indeed the findings of this thesis agree that copyright infringement has become easier to
accomplish, it is arguable that the second statement does not provide sufficient justification for the
imposition of strict liability offences. The logical reasoning appears to be that as offences have
become easier to commit, legislation should make offences easier to prosecute in order to provide a
counterweight. This simply does not make sense. The only result of this policy is that more
individuals are potentially criminally liable for their conduct. There is no evidence to suggest that
prosecutions have failed, or have not been initiated, because of difficulties proving the fault
elements of the repealed offences. Of the reported cases of prosecutions brought under the
Copyright Act 1968 (Cth), only in Pontello v Giannotis 994 was the fault element a contentious issue.
In addition to the introduction of the strict liability offences, the Copyright Amendment Act 2006
(Cth) introduced evidential presumptions for criminal prosecutions relating to the subsistence and
ownership of copyright in Part V, Division 5, Subdivision G of the Copyright Act 1968 (Cth). These
provisions allow a rebuttable presumption to be made about who owns copyright in a work or other
subject matter and the year of first publication based upon the labelling applied by the
manufacturer. No offence exists for misleading labelling. This directly contravenes another
recommendation made by the Senate Standing Committee for the Scrutiny of Bills:
“[...] strict liability should depend as far as possible on the actions or lack of action of those
who are actually liable for an offence, rather than be imposed on parties who must by
necessity rely on information from third parties in Australia or overseas; offences which do
not apply this principle have the potential to operate unfairly” 995
Not only are the various strict liability offences for dealing with infringing copies dependent on third
party information, courts are now expressly instructed to take this information at face value.
Another recommendation of the Senate Standing Committee for the Scrutiny of Bills was that:
“[...] it is undesirable if a strict liability scheme includes a large number of offences creating a
substantial pool of contravening behaviour, resulting in selective and possibly inconsistent

993

Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) General Outline
Pontello v Giannotis (1989) 16 IPR 174
995
Senate Standing Committee for the Scrutiny of Bills, Commonwealth Parliament, Application of Absolute
and Strict Liability Offences in Commonwealth Legislation (2002) 286
994

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