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[3.4] Overall Conclusion on Harm Assessment

[3.4] Overall Conclusion on Harm Assessment

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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At least one of the offence sections could be partially repealed.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.

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
Table 7 Harm Principle Applied to Offence Sections
Offence Sections
s 132AC
ss 132AD – 132AG
s 132AH (exc. sub-ss (1)(vii),
(3)(vii) and (5)(vii))
s 132AH(1)(vii), (3)(vii) and
(5)(vii)
s 132AI(1), (3) and (7)
s 132AI(2) and (5)
s 132AJ (exc. sub-ss (1)(vii),
(3)(vii) and (5)(vii))
s 132AJ(1)(vii), (3)(vii) and (5)(vii)
ss 132AL – 132AO
ss 132APC – 132APE
s 132AQ
s 132AR (exc. sub-ss (1)(b)(iii),
(3)(b)(iii) and (5)(b)(iii))
s 132AR(1)(b)(iii), (3)(b)(iii) and
(5)(b)(iii)
s 132AS
ss 135ASA – 135ASJ
ss 248PA – 248 PH
s 248PI
s 248PJ(1), (4) and (7)
s 248PJ(2) and (5)
s 248PK (exc. sub-ss (1)(a)(iv) and
(3)(a)(iv))
s 248PK (1)(a)(iv) and (3)(a)(iv)
ss 248PL and 248PM
ss 248QB and 248QC
s 248QD
s 248QE(1), (4) and (7)
s 248QE(3) and (5)
s 248QF (exc. sub-ss (1)(a)(iv)
and (3)(a)(iv))
s 248QF (1)(a)(iv) and (3)(a)(iv)
ss 248QG and 248QH

Justified for causing substantial
harm to copyright owners,
broadcasters or performers?
Yes
No
No

Justified for causing substantial harm to the
public welfare?

No

No

No
No
No

Yes
No
Yes

No
No
No
No
No

No
No
Yes
No
Yes

No

No

No
Yes
No
No
No
No
No

Yes
Yes
No
Yes
Yes
No
Yes

No
No
No
No
No
No
No

No
Yes
No
Yes
Yes
No
Yes

No
No

No
Yes

No
Yes
Yes

In summary, to be legitimately justified according to the harm principle, where the offences can be
applied to non-commercial activities, the offences either require the addition of a commercial
element or a result element of substantial harm to the copyright owner. If these offences are not
altered there is a risk that they will be perceived as illegitimate.
The majority of the offences in the Copyright Act 1968 (Cth) are tiered according to the culpability of
the individual or corporation committing the offence, with a corresponding tiering of penalties. This
has the potential to create serious criminal liability for conduct that has caused harm to neither
copyright owner or to the public welfare, and conversely to only apply modest punishment to

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Chapter 8
offences that have caused substantial harm. Again, this creates a risk of the offences being perceived
as illegitimate.

[3.5] Social Norms Concerning Copyright Works
Although theory predicts that social norms can be effective in controlling behaviour, the market for
copyright works could not effectively function if the publishing industry were to rely solely on social
norms as a restraint. Even if the CEO of The Walt Disney Company cared deeply about his company’s
reputation among his competitors, it is unlikely that this would be sufficient for The Walt Disney
Company to adhere to a social norm of “no copying” given the potential financial benefits of
economic free-riding. The market would simply fail. However, at least some of the conditions for a
social norm to emerge do exist. A “no copying” norm would maximise the aggregate welfare of the
large media conglomerates, though it is arguable whether they could be reasonably regarded as a
close-knit group which forms the second part of the Ellickson theory. 1062 A “no copying” norm would
certainly signal trustworthiness in cooperate ventures in accordance with the Posner theory of
signalling, 1063 but it is doubtful if there is a sufficient level of trading or cooperation that would make
esteem withholding or boycotting an effective sanction. 1064 The only sanction that would work to
negate the benefit of free-riding is one that only the state can provide. A copyright owner cannot
take any profits accumulated through a breach a “no copying” norm by force. Copyright law alone
can provide the sanction that makes the parties “even”. 1065
It is evident that the various publishing industries regard the rules embodied in copyright law as
being highly legitimate, and they certainly share the aggregate welfare that copyright law gives
them. This can be described by social norm theory in two ways. Either copyright law is in fact the
substantive social or business norms of the publishing industry codified in legislation, 1066 or it is not

1062
1063

765

Ellickson, R.C., Order Without Law: How Neighbours Settle Disputes (1991) 167
Posner, E.A., ‘Symbols, Signals and Social Norms in Politics and the Law’ (1998) 27 Journal of Legal Studies

1064

Bernstein, L., ‘Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry’
(1992) 21 Journal of Legal Studies 115; Bernstein, L., ‘Merchant Law in a Merchant Court: Rethinking the
Code's Search for Immanent Business Norms’ (1996) 144 University of Pennsylvania Law Review 1765;
Bernstein, L., ‘ The Questionable Basis of Article 2's Incorporation Strategy: A Preliminary Strategy’ (1999) 66
University of Chicago Law Review 710; Bernstein, L., ‘Private Commercial Law in the Cotton Industry: Creating
Cooperation Through Rules, Norms, and Institutions’ (2001) 99(7) Michigan Law Review 1724
1065
In discussing the strategies of Prisoner’s Dilemma, Robert Ellickson and Axel Geisinger both claim that
“evening-up” is the best strategy for ensuring future cooperative behavior: see See Ellickson R.C., Order
Without Law: How Neighbours Settle Disputes (1991) and Geisinger, A., ‘A Group Identity Theory of Social
Norms and Its Implications’ (2003) 78 Tulane Law Review 605
1066
This view is indirectly supported by a number of scholars who have commented about the influence the
publishing industries have wielded in the legislative process: see – Litman, J.D., Digital Copyright (2001) 35;
Litman, J.D., ‘Copyright, Compromise and Legislative History’ (1987) 72 Cornell Law Review 857, 903; Patry,

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
strictly speaking a substantive norm at all, because it relies upon the law to ensure compliance.
Whichever view is correct, it is clear that there are ancillary norms in the publishing industry which
determine the normative behaviour for a breach of the substantive law or norm. Evidence would
suggest that the controller-seeking norm in the publishing industries is to use lawyers, and the
remedial norm is to sue, or threaten to sue in order to reach a settlement. This at least appears to be
true where the copyright infringer has the ability to pay sufficient damages or has made enough
profit to make the legal process financially viable. 1067 If this is not the case the controller-selecting
norm may determine that the correct behaviour is to report the infringement to the police. 1068 In
support of the view that copyright law is in effect the legislated norms of the publishing industries
there is evidence to support the idea that rights holders regard copyright law as their own. In
Australia, after the case of Singtel Optus Pty Ltd v National Rugby League Investments Pty
Limited (No 2), 1069 the chief executives of four sporting bodies sought, and were granted, an
audience with the Prime Minister of Australia, the Attorney-General, the Communications Minister
and the Sports Minister to discuss making amendments to the Copyright Act 1968 (Cth). This
occurred before the case was appealed successfully in the Full Federal Court. 1070 The CEO of the
National Rugby League was quoted as saying effectively that the law was wrong:
“It is clear that the technology has overtaken the law. The previous changes to the Act were
already expressed to protect the interest of copyright holders, and this development and the
court decision supporting it, flies in the face of that.” 1071

W.F., ‘Copyright and the Legislative Process: A Personal Perspective’ (1996) 14 Cardozo Arts and Entertainment
Law Journal 139; Samuelson, P., ‘Should Economics Play a Role in Copyright Law and Policy?’ in Takeyama, L. et
al (eds), Development in the Economics of Copyright (2005); Jenson, C. ‘The More Things Change, the More
They Stay the Same: Copyright, Digital Technology, and Social Norms’ (2003) 56 Stanford Law Review 531, 541
(“The process of drafting copyright legislation often amounts to little more than negotiations among narrow
interest groups; without a seat at the bargaining table, the public has no meaningful opportunity to participate
in the legislative process. This process fosters the (often accurate) perception that copyright law is designed by
and for the benefit of a small circle of vested interests.”)
1067
Luttrell, S., ‘Copyright Enforcement in Australia’ (2008) 11 International Trade and Business Law Review 3,
27
1068
Luttrell, S., ‘Copyright Enforcement in Australia’ (2008) 11 International Trade and Business Law Review 3,
27 (advocating this approach); Sugden, P., ‘You Can Click but You Can’t Hide: Copyright Pirates and Crime – The
“Drink or Die” Prosecutions’ [2008](6) European Intellectual Property Review 220
1069
Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd [2012] FCA 34; Knight, P., ‘TV Now or TV
later? Case Note: Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34’
(2012) 24(8) Australian Intellectual Property Law Bulletin 202
1070
National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd [2012] FCAFC 59; Hinchliffe, S. ‘Time for
a Review of Automated Programmes and Free-to-air Services - Case Note; National Rugby League Investments
Pty Ltd v Singtel Optus Pty Ltd’ (2012) 25(1) Australian Intellectual Property Law Bulletin 6
1071
http://www.theage.com.au/afl/afl-news/sports-demand-protection-of-broadcast-rights-201202071r5ko.html (Accessed 26 July 2012)

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