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[3.5] Social Norms Concerning Copyright Works

[3.5] Social Norms Concerning Copyright Works

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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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Chapter 8
Many other groups comply with copyright law, such as librarians and traders who play music at their
place of business, but even if the social norm of these groups is to obey the law of copyright, it
would be unusual if the controller-seeking and remedial norms of these groups were the same as
those of the publishing industry. It is far more likely that the controller-selecting norm would
determine that it would be for the individual detecting the breach to enforce the remedial norm,
which would most likely be to remind the infringer that they could be liable for copyright
infringement. It would require an extreme belief in the legitimacy of copyright law for an individual
to report the infringement to either the copyright owner or the police.
For much of the history of copyright, the general population have not had access to the technology
required to enable copyright infringement. The two ex ante facto regulatory mechanisms that Lessig
describes, 1072 the market and architecture, effectively restrained the ability of non-industrial actors
to infringe copyright. The two ex post facto regulatory mechanisms, 1073 the law and social norms,
developed without the involvement of the public and among a narrow group of interested
parties. 1074 The public simply did not need to concern themselves with the ethics or lawfulness of
copying, so would be very surprising if a “no-copying” norm developed in the various social groups
that make up consumers of copyright works. None of the theories which explain the origins of
norms 1075 predict such a development.
This does not mean that there was a total absence of norms concerning copyright works. The
fundamental norm of reciprocity meant that within most social groups it would be permissible to
share copyright works among friends, family and co-workers. 1076 The lending of books, records and
videotapes to friends would meet the conditions in all norm origin theories for it to develop. It
maximises the aggregate welfare of the group, it signals a willingness to cooperate, and attracts
esteem in the form of gratitude.
The purchase and use of commercially pirated works presents a slightly more complex theoretical
picture. There would be no real aggregate benefit for a social group if one of its members bought a
1072

Lessig, L., ‘The Law of the Horse: What Cyberlaw Might Teach’ (1999) 113 Harvard Law Review 501, 510
footnote 32
1073
Lessig, L., ‘The Law of the Horse: What Cyberlaw Might Teach’ (1999) 113 Harvard Law Review 501, 510
footnote 32
1074
Jenson, C. ‘The More Things Change, the More They Stay the Same: Copyright, Digital Technology, and
Social Norms’ (2003) 56 Stanford Law Review 531, 544
1075
Ellickson, R.C., Order Without Law: How Neighbours Settle Disputes (1991); McAdams, R.H., ‘The Origin,
Development and Regulation of Norms’ (1997) 96 Michigan Law Review 338; Posner, E.A., ‘Symbols, Signals
and Social Norms in Politics and the Law’ (1998) 27 Journal of Legal Studies 765
1076
Strahilevitz, L.J., ‘Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping
Networks’ (2003) 89 Virginia Law Review 505, 543

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
pirated work, but neither would there be any cost. Signalling theory and esteem theory might allow
an “anti-pirated copy” norm to develop, since it might indicate that the purchaser was too cheap to
buy a genuine copy. On the other hand, it might also indicate that the person had sufficient social
connections to obtain an illicit copy. If the illicit copy was of an unreleased movie or was traded at a
vastly cheaper price, esteem might be granted for the ingenuity of bypassing the copyright owner
and obtaining a copy. Again it is unlikely that a strong “anti-pirated copy” norm would develop and
more likely that a “tolerance norm” would develop. 1077 This “tolerance norm” would probably be
extended to the seller of the illicit work, so it would be unlikely that a remedial norm would go
beyond showing a mild disapproval, 1078 and equally unlikely for a controller-seeking norm to be to
contact the authorities, unless perhaps the purchaser was “ripped-off” and could not obtain a
refund.
However, this does not mean that a norm that endorses commercial piracy would develop either.
The social status of individuals conducting illegal businesses on the margins of society is perceived as
fairly low. Selling an infringing copy does not signal a willingness to cooperate to the same extent as
lending or gifting a copy. If Kahan’s global norm of reciprocity exists, the expected behaviour would
be the swapping of infringing copies, 1079 not the selling infringing copies. The introduction of money
into the exchange puts it at arm’s length and the transaction changes from being one between
members of a social group to a transaction between a vendor and a purchaser. It would be less likely
for a purchaser to care if their vendor was sanctioned by the law than one of their friends, family
members or co-workers, since the vendor would be less likely to form part of their social group.
The introduction of home computers and the internet have had a profound effect on behaviour.
Although private copying has been technologically possible since the introduction of domestic audio
and video recorders in the 1970s, the volume of copies that could be made and distributed was
1077

Strahilevitz, L.J., ‘Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping
Networks’ (2003) 89 Virginia Law Review 505, 544 discussing tolerance of file sharing (“While almost one-half
of the American public believes that downloading copyrighted sound recordings from Napster, Gnutella, or the
hybrids is morally wrong, there has been virtually no effort to use that sentiment to enforce laws against
unauthorized downloading. Members of the public who believe that unauthorized downloading is theft have
been unwilling to do anything to combat the practice. Nor has any social disapproval been directed at the
millions of "thieves" who are stealing copyrighted content. File-swapping may well be like speeding on the
freeway – widely tolerated, technical violation of a rule that invokes virtually no moral outrage when done in
moderation”)
1078
Strahilevitz, L.J., ‘Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping
Networks’ (2003) 89 Virginia Law Review 505, 537 describing “the scorn that had previously been reserved for
those who sold knock-off CDs on street corners.”
1079
However, quite large networks engaging in this type of activity have been documented, even before the
internet was available to domestic users: see - Irvine v Carson (1991) 22 IPR 107 and Irvine v Hanna-Rivero
(1991) 23 IPR 295

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Chapter 8
limited by the architecture of the technology. The amount of distribution that occurred was mostly
limited to small groups. 1080 In any event, analogue technology could not produce copies that were of
sufficient quality to act as substitutes for professionally produced copies. In contrast, digital
reproduction produces exact copies. The demand for the physical containers diminished when
people began to store their collections of music on the hard drives of their computers and their
iPods. Instead of lending CD to a friend, it was possible to burn a copy for them instead at very little
cost. The introduction of the internet and file sharing technology meant that individuals no longer
needed to rely on their social group as a source for copies. Essentially, the ante-facto constraints on
behaviour, architecture and the market, were removed within relatively short period of time. 1081
This has left social norms and the law as the only remaining constraints to prevent commercial scale
copying and distribution by individuals. 1082
The existing norms about the use of copyright works have done little to constrain behaviour. The
absence of a “no-copying” norm among most social groups has meant that very few individuals will
have experienced a loss of esteem from their social group for downloading a copyrighted work. 1083
Even if this were the case, file sharing is an activity that largely takes place in private
surroundings 1084 which means there is little opportunity for a “no-copying” norm to be detected or
enforced. 1085 Any guilt cost from an internalised “no-copying” norm is also likely to be greatly
outweighed by the value of material that can be downloaded.

1080

Strahilevitz, L.J., ‘Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping
Networks’ (2003) 89 Virginia Law Review 505, 543
1081
Jenson, C., ‘The More Things Change, the More They Stay the Same: Copyright, Digital Technology, and
Social Norms’ (2003) 56 Stanford Law Review 531, 557
1082
Jenson, C., ‘The More Things Change, the More They Stay the Same: Copyright, Digital Technology, and
Social Norms’ (2003) 56 Stanford Law Review 531, 556
1083
Jenson, C., ‘The More Things Change, the More They Stay the Same: Copyright, Digital Technology, and
Social Norms’ (2003) 56 Stanford Law Review 531, 563; Strahilevitz, L.J., ‘Charismatic Code, Social Norms, and
the Emergence of Cooperation on the File-Swapping Networks’ (2003) 89 Virginia Law Review 505, 544
(“Known unauthorized downloaders are not shunned, blackballed, or otherwise subjected to any form of social
sanction”); Feldman, Y. and Nadler, J., ‘The Law and Norms of File Sharing’ (2006) 43 San Diego Law Review
577, 590 (“If the law prohibits behaviours that are widely known to be common, it may lose legitimacy or
credibility. This lack of alignment is exacerbated with file sharing because its social approval is perceived as so
prevalent the many otherwise law abiding people simply do not care whether the activity is legally
prohibited”)
1084
Strahilevitz, L.J., ‘Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping
Networks’ (2003) 89 Virginia Law Review 505, 544
1085
A reported exception to this occurred in 2004 when Texas judge William Adams beat his daughter Hillary
with a belt for downloading infringing copies of works at home: see
http://www.guardian.co.uk/world/2011/nov/03/texas-judge-william-adams-beats-daugther (Accessed 27 July
2012); http://abcnews.go.com/US/judge-beat-daughter-remorseful/story?id=14873563#.UBIeU5hvBBk
(Accessed 27 July 2012); http://www.dailymail.co.uk/news/article-2056582/Judge-William-Adams-beatsdisabled-daughter-Hillary-16-YouTube-video.html (Accessed 27 July 2012). The outrage expressed in response

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
Professor Lior Strahilevitz provides an explanation for the more puzzling aspect of file sharing: why
so many internet users would apparently upload material for others to download. Ellickson’s theory
on the origins of norms only predicted that they would emerge in small-close knit groups where
neighbour had the opportunity to observe each other’s behaviour and make judgements about
whether the behaviour maximised the group’s aggregate welfare. These conditions would appear to
be the antithesis of the internet. However as Strahilevtz explains, file sharing platforms have
mimicked the conditions for the origin of a social norm by prominently displaying the amount of
users who are contributing to the pool of infringing copies, but masking the many downloaders who
contribute nothing. This has the effect of creating an appearance that file sharing is the norm and
that reciprocity is expected. Strahilevitz explains that reciprocating can alleviate feelings of guilt
about being indebted to someone who has given something for free, even if this meant helping a
third person. 1086 This reciprocity cascades further solidifying reciprocating behaviour and avoids a
“tragedy of the commons” from occurring.
This has meant that the operators of file sharing platforms have been effective “norm
entrepreneurs”, individuals who tap into existing norms and change them. Even the terminology
used fosters a belief that the activity is normatively acceptable. The words “file sharing” connote
cooperative and altruistic behaviour; “file stealing” would not. The publishing industries have also
clearly made efforts to be “norm entrepreneurs”, with a number of campaigns seeking to persuade
consumers that piracy is harmful and should be condemned as stealing. 1087 However these appear to
have been unsuccessful in persuading the general public to treat copyright law with the same
respect as the publishing industries do. 1088 This may be due to the perception that a powerful group
is attempting to manipulate them, which Lessig contends leads to strong resistance to the
manipulation. 1089 Even though there is a manipulation of perception by file sharing “norm
entrepreneurs”, they are not perceived as a powerful group and therefore their message is not
treated as suspect. The economics of file sharing can also explain why a norm permitting it has taken

to this story supports the Ellickson theory that selecting the wrong remedy can breach an ancillary remedial
norm, triggering a remedial norm of disapproval.
1086
Strahilevitz, L.J., ‘Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping
Networks’ (2003) 89 Virginia Law Review 505, 563
1087
Loughlan P., ‘“You Wouldn’t Steal a Car”: Intellectual Property and the Language of Theft’ [2007] 10
European Intellectual Property Review 401; Reyman J., The Rhetoric of Intellectual Property: Copyright Law
and the Regulation of Digital Culture (2010); Sterk, S. E., ‘Rhetoric and Reality in Copyright Law’ (1996) 94(5)
Michigan Law Review 1197; Yu, P., ‘Digital Copyright and Confuzzling Rhetoric’ (2011) 13(4) Vanderbilt Journal
of Entertainment and Technology Law 881
1088
Neri, G., ‘Sticky Fingers or Sticky Norms - Unauthorized Music Downloading and Unsettled Social Norms’
(2004) 93 Georgetown Law Journal 733, 735
1089
Lessig, L., ‘The Regulation of Social Meaning’ (1995) 62 University of Chicago Law Review 943, 1017

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Chapter 8
hold. As Professor Tim Wu correctly points out, complying with copyright law may serve the
collective interest, but it is not in any given individual’s or sub group’s economic interest to
comply. 1090 Creating an environment that limits the evasion of copyright to an “in” group “is to live
the game theorist’s version of utopia”. 1091 It may well be the case that the maximisation of the
aggregate welfare of file sharers is so large, 1092 that the requirement in Ellickson’s theory for there
to be a close-knit group for a norm to develop is negated entirely or diminished.
It is clear that social norms concerning the use of copyright works and other related rights vary
according to the purpose for which they are used by social groups. For those who rely on the
protection of copyright to generate income from works, there is a strong social norm that supports
strict adherence to copyright law. The social norms of groups who use copyright for commercial
purposes differ since copyright works are used for the purpose of enhancing the trade in other
goods and services, rather than the trade in copyright works. In Australia at least, there is a high
compliance rate with copyright law within this group. The role of social norms in supporting this
conformity to copyright law is unclear, but the risk of non-compliance is usually outweighed by the
benefits accrued from compliance.
The social norms of consumers are different again. There is substantially less risk of the application
of external sanctions to deter copyright infringement, so social norms are at the forefront of
informing behaviour about copyright works. It would appear that far from sanctioning copyright
infringement, the social norms of consumers either tolerate or support non-commercial private
copying and distribution. The benefit of engaging in this behaviour, for both individuals and large
online social groups, far outweighs the risks of legal sanctions being applied. On the other hand,
commercial infringement is not supported by the social norms of consumers, but the norms of
sanctioning such behaviour are weak.
[3.5.1] Application to the Current Offences
The application of the social norms of consumers to the offences in the Copyright Act 1968 (Cth) is as
simple as the social norm itself. Where an offence can be directed at non-commercial infringement
of copyright or related rights, social norms will be at variance with the offence. This will mean that
the behaviour that the offence prohibits will not be deterred unless there is a significant increase in
the enforcement of the law or the social norm can be changed. Table 8 below illustrates the offences

1090

Wu, T., ‘When Code Isn't Law’ (2003) 89 Virginia Law Review 679, 746
Wu, T., ‘When Code Isn't Law’ (2003) 89 Virginia Law Review 679, 746
1092
Wu, T., ‘When Code Isn't Law’ (2003) 89 Virginia Law Review 679, 746 (“The intuitive answer is that
everyone likes things for free […])
1091

245

Offences in the Copyright Act 1968(Cth): Will They Be Effective?
where this gap between the law and norms exists, as an addition to the table illustrating the
justifications for the offences for causing substantial harm in paragraph [3. 4]. As the table shows,
there is a correlation between offences that can be legitimately justified for causing substantial harm
to the public welfare and the social norms of consumers. Section 132AC provides an interesting
problem area. Although the offence can be legitimately justified for causing substantial harm to a
copyright owner, the absence of a commercial element to the offence put it at odds with the social
norms of consumers. This supports the view taken by Christopher Jensen that the absence of a close
relationship between the groups that produce copyright works and the consumers of that work will
fail to produce a social norm that would sanction harming the producer of the copyright work. 1093
This differs from the view taken by Lior Strahilevitz, who suggests that “close-knittedness” is not
always necessary to form a social norm. 1094

1093

Jenson, C. ‘The More Things Change, the More They Stay the Same: Copyright, Digital Technology, and
Social Norms’ (2003) 56 Stanford Law Review 531, 540 (“[…] there are victims of copyright infringement. In
particular, the human (as opposed to corporate) victims of copyright infringement are the authors, composers,
and other artists who would otherwise receive royalties from the use of their works. Nevertheless, these
victims, where they exist, do not live next door to the online file-sharer; in fact, they are unlikely to ever meet.
Thus, whereas Ellickson found that close-knit groups like the ranchers of Shasta County “develop and maintain
norms whose content serves to maximize the aggregate welfare that members obtain in their workaday affairs
with one another,” copyright law cannot fall back on this network of social relationships to enforce or
supplement the content of the positive law.”)
1094
Strahilevitz, L.J., ‘Social Norms from Close-Knit Groups to Loose-Knit Groups’ (2003) 70 University of
Chicago Law Review 359

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Chapter 8
Table 8 Harm Principle and Social Norms 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?

Gap between social norms of
consumers and law?

No
Yes
Yes

Yes
No
No

No

No

Yes

No
No
No

Yes
No
Yes

No
Yes
No

No

No

Yes

No
No
No
No

No
Yes
No
Yes

Yes
No
Yes
No

No

No

Yes

No
Yes
No
No
No
No
No

Yes
Yes
No
Yes
Yes
No
Yes

No
No
Yes
No
No
Yes
No

No

No

Yes

No
No
No
No
No
No

Yes
No
Yes
Yes
No
Yes

No
Yes
No
No
Yes
No

No

No

Yes

No

Yes

No

One explanation is that the social groups to which Strahilevitz refers are engaging in behaviour that
is more mutually beneficial for the individuals in that group that the interaction between copyright
producers and consumers despite both relationships being “loose-knitted”. However, s 132AC
provides a rare opportunity for law enforcement to engage in effective norm entrepreneurship. If
the offence is used judiciously in cases of extremely large scale online file sharing, a norm could
emerge that sanctions “greedy” file sharing: downloading more material than can be possibly be

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
used. If this could be coupled with signalling through the expressive function of the law that less
harmful copyright infringement can be tolerated, there is a chance that the law can be aligned with
social norms and begin to guide them.

[4] Recommendations for More Fundamental Changes
While the remedial recommendations set out above will resolve the most egregious flaws in the
current offence regime, the more fundamental theoretical problems identified in Chapter 3 are not
as easily addressed. The gap between the social norms of consumers and the law of copyright
cannot be plugged by criminal sanctions. The only real and permanent solution to this problem
would be to redraft the law of copyright so that the social norms and practices of consumers are
able to function within the law, and would need to permit private copying and distribution using the
Internet. While this would promote the public welfare interest in maintaining and maximising access
to works, it could cause great difficulties in incentivising authors, artists and investors. It would
involve the adoption of new business models across a variety of sectors that presently use the law of
copyright for protection.
The monopoly granted by copyright is not the only model for raising revenue for artistic product or
incentivising work. For example, the Australian Broadcasting Corporation is funded directly from
appropriations of the Federal Government 1095 and the British Broadcasting Corporation receives
funding from the licensing of television reception equipment, 1096 which now includes computers
capable of receiving television signals through internet connections. 1097 Direct funding for authors
could be achieved through taxation and a system of measuring the quantity of downloaded works.
William Fisher advocates such a solution in Promises to Keep. 1098 Such ambitious proposals such as
this would involve a transnational overhaul of the copyright system, which would require new
international treaties to replace or amend the International Convention for the Protection of Literary
and Artistic Works (“the Berne Convention”), 1099 the World Intellectual Property Organisation
Copyright Treaty (“the WIPO Copyright Treaty”), 1100 the World Trade Organisation Agreement on

1095

Australian Broadcasting Corporation Act 1983 (Cth) s 67;
http://www.aph.gov.au/library/intguide/sp/fundingabc.htm (Accessed 27 April 2011)
1096
See http://www.bbc.co.uk/aboutthebbc/licencefee/ (Accessed 19 May 2011)
1097
The Communications (Television Licensing) Regulations 2004 (England and Wales) reg 9
1098
Fisher, W., Promises to Keep: Technology, Law, and the Future of Entertainment (2004)
1099
International Convention for the Protection of Literary and Artistic Works, opened for signature 9
September 1886, 1 LNTS 218
1100
World Intellectual Property Organisation Copyright Treaty, opened for signature 20 December 1996, [2007]
ATS 26

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Chapter 8
Trade Related Intellectual Property Rights (“the TRIPS Agreement”), 1101 the International Convention
for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (“the
Rome Convention”), 1102 the World Intellectual Property Organisation Performances and Phonograms
Treaty (“the WPPT”) 1103 and the Australia-US Free Trade Agreement. 1104 The practical difficulties in
implementing such a change could not be overstated. It would be virtually impossible for the
Australian Parliament to unilaterally change the Copyright Act 1968 (Cth) so radically, without
breaching its obligations under the above mentioned treaties.
While bringing about changes which would align the law with social norm theory would be
extremely difficult for the Australian Parliament, there would be less difficulty in bring the Copyright
Act 1968 (Cth) partially in line with harm theory. As this thesis has shown, the scope of the current
offence regime in Australia is so wide that it has criminalised even the most trivial instances of
copyright infringement which do not cause substantial harm to either the copyright owner or to the
public welfare. Redrafting the offence provisions to incorporate the harm principle would still allow
prosecutions to proceed against copyright infringement that causes genuine and substantial harm to
copyright owners and to the public welfare, but would alleviate the risk of criminal prosecution for
individuals and businesses who engage in low-level infringement which can be still be dealt with by
the civil courts. Such changes could be made within Australia’s treaty obligations.

[4.1] Incorporating the Harm Principle
Incorporating the harm principle into the Copyright Act 1968 (Cth) would not be a radical or
revolutionary step for Parliament to take. Indeed, as discussed in Chapter 3 above, ss 132AC and
132AI contain offences that have result elements which require harm of some degree to be proven
in order for the offence to be complete. However, and with particular reference to s 132AI, the
degree of harm required under these sections is not entirely clear and could well be interpreted to
be at a level which would be below the theoretical level of “substantial harm”. One obvious option
might be to incorporate a result element into each of the offences which requires that the conduct
causes substantial harm to the interests of the copyright owner. This option, while probably being
the closest to follow the harm principle theory, might not be greeted favourably by prosecutors who

1101

299

Agreement on Trade Related Intellectual Property Rights, opened for signature 15 April 1994, 1869 UNTS

1102

International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations, opened for signature 26 October 1962, 496 UNTS 43
1103
World Intellectual Property Organisation Performances and Phonograms Treaty, opened for signature 20
December 1996, [2007] ATS 27
1104
Australia-US Free-Trade Agreement 18 May 2004, [2005] ATS 1

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
would have to go about proving that substantial harm had occurred, nor would it be consistent with
Australia’s treaty obligations. Before a more workable and practical solution can be tendered, it is
useful at this point to examine and contour Australia’s treaty obligations to implement criminal
sanctions for copyright infringement, so that any recommendation will satisfy those obligations.

[4.2] Treaty Obligations for Criminal Enforcement
Australia has entered into several treaties which carry obligations related to copyright, among them
the Berne Convention, 1105 the WIPO Copyright Treaty, 1106 the TRIPS Agreement, 1107 the Rome
Convention, 1108 the WPPT 1109 and the Australia-US Free Trade Agreement. 1110 Of these only the TRIPS
Agreement and the Australia-US Free Trade Agreement contain specific obligations for criminal
procedures and penalties. 1111 The WIPO Copyright Treaty requires that contracting parties ensure
that enforcement procedures are available that permit effective action against infringement,
including remedies which constitute a deterrent to further infringement, but makes no requirement
for this to be a criminal proceeding.
Article 61 of the TRIPS Agreement requires member states to provide for criminal procedures and
penalties to be applied at least in cases of wilful copyright piracy on a commercial scale, with
penalties including imprisonment or monetary fines sufficient to provide a deterrent, consistent with
the level of penalties applied for crime of a corresponding gravity. 1112
This obligation covers the same ground as Article 17.11.26(a) of the Australia-US Free Trade
Agreement, but Article 17.11.26(a) goes on to define “wilful copyright piracy on a commercial scale”
to include “significant wilful infringements of copyright, that have no direct or indirect motivation of
financial gain” 1113 and “wilful infringements for the purposes of commercial advantage or financial

1105

International Convention for the Protection of Literary and Artistic Works, opened for signature 9
September 1886, 1 LNTS 218
1106
World Intellectual Property Organisation Copyright Treaty, opened for signature 20 December 1996, [2007]
ATS 26
1107
Agreement on Trade Related Intellectual Property Rights, opened for signature 15 April 1994, 1869 UNTS
299
1108
International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations, opened for signature 26 October 1962, 496 UNTS 43
1109
World Intellectual Property Organisation Performances and Phonograms Treaty, opened for signature 20
December 1996, [2007] ATS 27
1110
Australia-US Free Trade Agreement 18 May 2004, [2005] ATS 1
1111
Agreement on Trade Related Intellectual Property Rights, opened for signature 15 April 1994, 1869 UNTS
299, art 61; Australia-US Free Trade Agreement 18 May 2004, [2005] ATS 1, art 17
1112
Agreement on Trade Related Intellectual Property Rights, opened for signature 15 April 1994, 1869 UNTS
299, art 61
1113
Australia-US Free Trade Agreement 18 May 2004, [2005] ATS 1, art 17.11.26(a)

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