Tải bản đầy đủ
[3.2] Assessing the Harm Caused to the Public Welfare

[3.2] Assessing the Harm Caused to the Public Welfare

Tải bản đầy đủ

Chapter 8
not spent on the legitimate copy will be diverted into other sectors of the economy, which will
equally provide employment opportunities and taxation revenue. However, if a consumer buys an
infringing copy, some of the money that would have been spent on a legitimate copy is saved, and
yet again may flow into other legitimate sectors of the economy, but some will be diverted to those
engaged in black market reproduction, even criminal groups. 1059 This money is unlikely to produce
any tax revenue for the state, 1060 and the money from the sale of the infringing copy can be used to
finance and support further criminal activity. This would certainly amount to substantial harm
caused to the public welfare.
[3.2.2] Harm Caused to Policy Aims of Copyright Law
As discussed in Chapter 3 at paragraph [2], copyright law exists as a compromise between competing
policy aims. One of these policy aims to incentivise the industrial production of new copyright works.
If the incentive to produce of work is damaged by an infringement, then this would cause harm to
the public welfare. The competing primary aim is to ensure access to copyright works. Far from
harming this objective, infringement actually promotes it because it gives a greater number of
people access to works than there would have been without the infringement. The relative weight
given to these policy aims determines the balance to be struck through the utilisation of copyright
law to give them effect. Following the reasoning of Landes and Posner 1061 to its ultimate conclusion,
an ideal economic outcome for the public welfare would be:
(1) unlimited and free access to copyright works for the public;
(2) sufficient financial incentive for artists to engage in the production of copyright works; and
(3) sufficient financial incentive to invest in the production of copyright works.

Industry May Gain from Free Downloading - The Role of Sampling’ (2006) 24(5) International Journal of
Industrial Organization 907; Peitz, M. and Waelbroeck, P., ‘The Effect of Internet Piracy on Music Sales: CrossSection Evidence’ (2004) 1(2) Review of Economic Research on Copyright Issues 71
1059
In 1999 the Australian Federal Police stated it could not establish any significant evidence of the
involvement of Australian organised crime groups in copyright infringement, but that the prospect of
organised criminal activity needs to be taken into account. See Submission to Standing Committee on Legal
and Constitutional Affairs, House of Representatives, Inquiry into Enforcement of Copyright in Australia, June
1999, 4 (Australian Federal Police) (Available at:
http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=/la
ca/copyrightenforcement/sub35.pdf (Accessed 18 July 2012)
1060
Submission to Standing Committee on Legal and Constitutional Affairs, House of Representatives, Inquiry
into Enforcement of Copyright in Australia, June 1999, 4 (Australian Federal Police) (Available at:
http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=/la
ca/copyrightenforcement/sub35.pdf (Accessed 18 July 2012)
1061
Landes, W.M and Posner, R.A. ‘An Economic Analysis of Copyright Law’ (1989) 18 Journal of Legal Studies
325

233

Offences in the Copyright Act 1968(Cth): Will They Be Effective?
The distribution of infringing copies through the internet provides the first outcome, but not the
second and third outcomes. Copyright law as it stands provides sufficient incentives for artists and
investors, but as yet cannot provide unlimited free access. The sale of infringing copies promotes
none of these ideal public welfare outcomes and is therefore more harmful to the public welfare
than the free distribution of infringing copies. Whether or not the harm caused amounts to
substantial harm will depend once again on the nature of the copyright work, the scale of the
infringement, and whether the damage has been mitigated by a civil remedy.
[3.2.3] Application to the Current Offences
For an offence to be legitimately justified for causing substantial harm to the public welfare, it would
therefore require three elements:
(1) the infringement is for commercial purposes; or
(2) the infringement causes sufficient harm to the copyright owner that it removes the incentive
to produce or invest in the production of new copyright works; and
(3) the harm cannot be mitigated by a civil remedy.
The offences under s 132AC once again come closest to fulfilling these criteria, but the offence is
capable of being directed at non-commercial infringement. The absence of a commercial nexus
means that in order to be legitimately justified, the harm caused by the infringement would have to
be large enough to not only cause substantial harm to the copyright owner, but through doing this
would substantially harm the incentive to produce new works. It is doubtful if the offence currently
meets this threshold.
The various offences for making and dealing in infringing copies in Part V Division 5 Subdivision C
almost all contain an element requiring a commercial purpose or motivation. Where this is the case,
the offences can be legitimately justified for causing harm to the public welfare. However, several
offences can be directed at conduct that neither has a commercial purpose or motivation nor would
cause enough harm to a copyright owner to substantially harm the incentive to produce or invest in
the production of new work. Sections 132AI(2) and (5) require a distribution of infringing copies to
affect the owner of the copyright prejudicially, but this does not have to be substantial enough to
harm the incentives discussed above. Sub-sections 132AH(1)(a)(vii), (3)(a)(vii) and (5)(a)(vii) have the
same requirement as the fault element for importing an infringing article. These offences can only
be partially legitimately justified, the non-commercial offences attract criminal liability where
neither substantial harm to the incentive to produce has been caused, nor where an unreasonable
risk of this occurring is present.

234

Chapter 8
Once again the offences under ss 132AJ, 132AL and 132AM do not require any harm to actually be
caused, and therefore in order to be legitimately justified, there would be an unreasonable risk that
the substantial harm would be caused to the public welfare. Section 132AJ requires the possession
of an infringing copy to be accompanied by the intention to do any of nine acts. The strict liability
offence under s 132AJ requires the possession to be in preparation for, or in the course of doing any
of the same nine acts. Of these nine acts all but one consist of commercial dealings, the exception
being to distribute the infringing article to the extent it will affect prejudicially the owner of the
copyright. As discussed above this would not meet the threshold of causing an unreasonable risk of
substantial harm to the incentive to produce or invest in the production of new work. Sections
132AL and 132AM are flawed for the same reasoning. The possession or making of tools that could
be used for infringement does not create an unreasonable risk of an infringement occurring, since
the same tools could be used for non-infringing copying. Advertising for the supply of an infringing
copy would not in itself create an unreasonable risk of harm, since the magnitude of the harm
caused would be sometimes be insufficient to cause substantial harm to the incentive to produce or
invest in the production of new work even though the probability the infringing copy being supplied
is high.
The absence of a commercial nexus for the offences in the offences under Part V Division 5
Subdivision D also means that the harm caused to the public welfare would need to be substantial
enough to remove the incentive to produce or invest in the production of new work. All of the
offences in this subdivision can be applied to conduct that falls short of this threshold.
The offences in Part V Division 5 Subdivision E all contain an element requiring an intention to obtain
a commercial advantage or profit, so these offences can be legitimately justified for causing
substantial harm to the public welfare. The offences for removing or altering electronic rights
management information in s 132AR does do not contain such an element, and the very low
threshold required to attract criminal liability falls far below an unreasonable risk of substantial
harm occurring. The other offences in Part V Division 5 Subdivision F do have elements which require
a commercial intention, but can also be applied a communication which does not need a commercial
intention. This means that these offences can be partially justified. The offence for communicating
copies after electronic rights management information has been removed can attract criminal
liability where there has been no substantial harm caused to the incentive to produce or invest in
production, so it cannot be legitimately justified.

235

Offences in the Copyright Act 1968(Cth): Will They Be Effective?
The offences for decoding differ slightly since there is no policy aim to maintain access to
subscription television, only to incentivise its continued operation. Where the offences require a
commercial nexus there will still be substantial harm to the public welfare through the diversion of
money to criminal enterprises. Although the remaining offences in ss 135ASA, 135ASF(1)(iii),
135ASG, 135ASH and 135ASI do not require a commercial purpose or motivation, cannot be
legitimately justified for causing harm to the public welfare since they can applied to conduct that
falls short of removing the incentive to continue supplying subscription television.
The threshold for criminal liability in the recording offences contained Part XIA is set at such a low
level that they cannot be legitimately justified for causing harm to the public welfare by either of the
qualifications. There is no commercial nexus in any of those offences nor does there need to be any
harm actually caused at all. This is not to say that these offences could not be applied to recordings
made or reproduced for commercial purposes or that cause enough harm to copyright owners that
the incentive to authorise performances is damaged, but the offence sections are broad enough for
criminal liability to attach to conduct that falls far short of either of these public interests. The
offences for commercially dealing in unauthorised recording can be legitimately justified for causing
substantial harm to the public interest, but the offences that create criminal liability for distribution,
or an intention to distribute, to the extent that the distribution prejudicially harms the financial
interests of the performer will not meet this qualification. Although this threshold is slightly higher
than the equivalent offences for distributing infringing copies, it is still low enough to criminalise
conduct that does not remove the incentive to perform. Offences containing these elements cannot
be legitimately justified for causing harm to the public interest.
[3.2.4] Conclusion
In conclusion, all of the offences that contain commercial elements can be legitimately justified for
causing substantial harm to the public welfare. The remaining offences for infringement or conduct
for non-commercial purposes are not qualified by a requirement to cause enough harm to remove
the incentives to produce, broadcast or perform copyright works, and therefore do not meet the
threshold for their legitimate justification.

[3.4] Overall Conclusion on Harm Assessment
Table 7 below illustrates the assessment of harm completed in the previous two sections of this
chapter. It shows that most of the offence sections can be legitimately justified for causing
substantial harm to either the interests of copyright owners, broadcasters, performers or to the
public welfare. There are a number of offences that fall short of this criteria, and need closer

236

Chapter 8
attention. Some of these offences can be brought into the substantial harm category by simply
adding a commercial nexus. Section 132AL for example, would be legitimised by adding an intention
to sell, let for hire, etc. the infringing copy produced by the device. The same would be true of
s 132AM for the supply of an infringing copy. As they stand, both offences can be applied to conduct
that does not cause harm. This is of particular concern for s 132AL since the offence can attract a
penalty of five years imprisonment on indictment. As the offence stands, being in possession of a
computer, which can make an infringing copy of virtually any unprotected digital file, and forming
the mental element of intending to make an infringing copy will activate the offence. There is no
need to even make the infringing copy, let alone have a commercial motivation.
The same argument applies to the offences for causing a work to be performed and causing a
recording or film to be heard or seen in public. Although it might be usual for a place of public
entertainment to charge some sort of entry fee or charge for the use of the facilities, it is not a
requirement of the offences. The harm threshold is particularly low in the offences for making
recordings of performance in Part XIA. This could also be addressed by requiring a commercial
motivation or purpose for the offences to be complete.
At least one of the offence sections could be partially repealed. The offences in sub-ss 132AI(2) and
(5) for distributing an infringing copy to the extent that it affects prejudicially the owner of the
copyright, would only be legitimately justified if the distribution met the threshold of substantial
harm to the copyright owner. This harm threshold for distributing an infringing copy would be
identical to the offences under s 132AC. Other offences that contain similar provisions for noncommercial distribution would also need to raise the threshold to substantial harm to the copyright
owner in order to be legitimately justified.

237