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[4.4] Proposed Legislative Amendments

[4.4] Proposed Legislative Amendments

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Chapter 8
(b) the articles are infringing copies of 1 or more works or other subject matter with a
total retail value of $2500 or more; and
(c) copyright subsists in the works or other subject-matters at the time of the making,
importation or distribution of the article.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550
penalty units or imprisonment for not more than 3 years, or both.
Summary offence
(3) A person commits an offence if:
(a) the person makes, imports or distributes 1 or more articles within a period of 180
days; and
(b) the articles are infringing copies of 1 or more works or other subject matter with a
total retail value of $1000 or more; and
(c) copyright subsists in the works or other subject-matters at the time of the making,
importation or distribution of the article.
Penalty: 120 penalty units or imprisonment for 1 year, or both.”
The two offence provisions above would harmonise the offence provisions of the United States and
Australia that concern direct and indirect copyright infringement. The enhanced penalties for a
second or subsequent offence that are found under the U.S. Code are not included here, nor is the
enhanced penalty for converting a work or other subject matter from analogue from into a digital
form under s 132AK of the Copyright Act 1968 (Cth). The Australia-US Free-Trade Agreement has no
such requirement for enhanced penalties. Much of the subject areas of the existing Australian
offences provision would remain, however the scope of the offences is substantially reduced by
tiering the penalty to be consistent with the harm caused, rather than the culpability of the
defendant. All circumstance and result elements of these offences would require recklessness as the
corresponding fault element which would be consistent with the offences under 17 U.S.C. §506. The
current offence provisions for possessing an infringing copy for commercial purposes, 1157 offering an
infringing copy for sale or hire, 1158 making or possessing a device for making an infringing copy, 1159

1157

Copyright Act 1968 (Cth) s 132AJ
Copyright Act 1968 (Cth) s 132AF
1159
Copyright Act 1968 (Cth) s 132AL
1158

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
and advertising the supply of an infringing copy 1160 would no longer constitute criminal offences,
which again would harmonise the scope of the Australian and United States criminal provisions.
In order to be consistent with the scope of the offence under 17 U.S.C. §1201, the offences under
Part V Division 5 Subdivision F would need to be repealed and replaced with the following:
“132AQ Removing or altering electronic rights management information
Indictable offence
(1) A person commits an offence if:
(a) copyright subsists in a work or other subject-matter; and
(b) either:
(i) the person removes, from a copy of the work or subject-matter, with the
intention of trading, obtaining a commercial advantage or profit, any
electronic rights management information that relates to the work or
subject-matter; or
(ii) the person alters, with the intention of trading, obtaining a commercial
advantage or profit, any electronic rights management information that
relates to the work or subject-matter; and
(c) the person does so without the permission of the owner or exclusive licensee of the
copyright; and
(d) the removal or alteration will induce, enable, facilitate or conceal an infringement of
the copyright.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550
penalty units or imprisonment for not more than 5 years, or both.

132AR Distributing, importing or communicating copies after removal or alteration of
electronic rights management information
Indictable offence
(1) A person commits an offence if:
(a) copyright subsists in a work or other subject-matter; and
(b) the person does any of the following acts in relation to the work or subject-matter:

1160

Copyright Act 1968 (Cth) s 132AM

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Chapter 8
(i) distributes a copy of the work or subject-matter with the intention of
trading or obtaining a commercial advantage or profit;
(ii) imports a copy of the work or subject-matter into Australia with the
intention of trading or obtaining a commercial advantage or profit;
(iii) communicates a copy of the work or subject-matter to the public with the
intention of trading or obtaining a commercial advantage or profit; and
(c) the person does so without the permission of the owner or exclusive licensee of the
copyright; and
(d) either:
(i) any electronic rights management information that relates to the work or
subject-matter has been removed from the copy of the work or subjectmatter; or
(ii) any electronic rights management information that relates to the work or
subject-matter has been altered;
without the permission of the owner or exclusive licensee of the copyright;
and
(e) the person knows that the information has been removed or altered without that
permission; and
(f) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an
infringement of the copyright.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550
penalty units or imprisonment for not more than 5 years, or both.

132AS Distributing, importing electronic rights management information
Indictable offence
(1) A person commits an offence if:
(a) copyright subsists in a work or other subject-matter; and
(b) the person does any of the following acts in relation to electronic rights
management information that relates to the work or subject-matter:
(i) distributes the electronic rights management information with the intention
of trading or obtaining a commercial advantage or profit;
(ii) imports the electronic rights management information into Australia with
the intention of trading or obtaining a commercial advantage or profit;

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
(c) the person does so without the permission of the owner or exclusive licensee of the
copyright; and
(d) either:
(i) the information has been removed from a copy of the work or subjectmatter without the permission of the owner or exclusive licensee of the
copyright; or
(ii) the information has been removed from a copy of the work or subjectmatter with the permission of the owner or exclusive licensee of the
copyright but the information has been altered without that permission; and
(e) the person knows that the information has been removed or altered without that
permission; and
(f) the act referred to in paragraph (b) will induce, enable, facilitate or conceal an
infringement of the copyright.
(2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550
penalty units or imprisonment for not more than 5 years, or both.”
This amendment would remove the summary and strict liability offences and ensure that there must
be an intention of trading or obtaining a commercial advantage or profit.

[5] Conclusion
The majority of offences in the Copyright Act 1968 (Cth) criminalise conduct that causes substantial
harm to the interests of copyright owners, broadcasters and performers. This could legitimately
justify the offences, where it not for the fact that they also create criminal liability for less harmful or
entirely harmless activities. All of the offences require a commercial purpose can be legitimately
justified for causing substantial harm to the public welfare since the conduct that these offences
address results in illicit income. The remaining offences for infringement or conduct for noncommercial purposes are not qualified by a requirement to cause sufficient harm to remove the
incentives to produce, broadcast or perform copyright works, and therefore do not meet the
threshold for their legitimate justification for causing harm to the public welfare.
Some section could be legitimised by the addition of a commercial element. Sections 132AL and
132AM for example, would be legitimised by adding an intention to sell, let for hire, etc. 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. The same applies to the offences for causing a work to be performed and causing a
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Chapter 8
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.
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.
There is a large gap between the social norms of consumers and the offences in the Copyright Act
1968 (Cth). 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 means that the behaviour
prohibited by the offence will not be deterred unless there is a significant increase in law
enforcement activity or the social norm can be changed.
The Australian Parliament has limited scope to make workable improvements to either the copyright
system or to the enforcement of the system through the criminal law. The amendments proposed
above will not only rebalance the mutual liabilities incurred by Australia’s treaty obligations with its
main trading partners, but would also close the existing gap between the social norms of consumers
and the law. The current Australian offences are far wider in scope than those of the United States. If
the laws of both countries were to be enforced to the same extent, Australia would be in a
disadvantaged position against one its major trading partners. 1161 Enforcement costs would be
greater, and far more Australians than Americans would acquire criminal records for essentially the
same conduct. By harmonising its criminal law with that of the United States, Australia could meet
its obligations without the burden of this disadvantage.
The recommended changes to the legislation would address this problem and would make progress
toward making the offences in the Copyright Act 1968 (Cth) consistent with the harm principle.
However, this would not address the problem of the gap between the social norms of consumers
and the law, since the same gap exists between the copyright law of the United States and the social
norms and practices of consumers. It is highly unlikely that increasing criminal liability will halt or
slow the increase in infringement by non-commercial entities due to the current gap between the
1161

167

See Productivity Commission 2010, Bilateral and Regional Trade Agreements, Research Report (2010), 164-

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
law of copyright and the social norms of consumers, and would actually aggravate this problem,
further entrenching the norms.
If the gap between social norms and the law can be narrowed, Parliament has a greater chance of
changing social attitudes toward file sharing. The changes that have occurred in social norms
regarding smoking, drink driving and seat belts show that it is not impossible to implement
significant changes in the behaviour, attitudes and practices of the public. Careful “norm
entrepreneurship” can modify social norms, but the law must be aligned with the existing norms in
order to begin this process.

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Chapter 9

Conclusion

While it is clear that copyright infringement is capable of substantially harming both the interests of
rights holders and the public welfare, the scope of the offences in the Copyright Act 1968 (Cth), as
they are currently drawn, is so broad that they are quite capable of being directed at conduct that
does not substantially harm either interest. Theoretically, the best way to ensure that the offences
are always legitimately justified would be to include a requirement to prove that substantial harm
was caused by the conduct or, in the case of an attempted offence, that the result was intended. In
reality, the costs of discharging such an evidential burden would be prohibitive in many cases.
Although infringement for commercial purposes does not always cause substantial harm, it is the
best candidate for a category of offences that can reasonably be assumed to cause some harm to
the interests of both rights holders and to the public welfare. The harm caused by non-commercial
infringement is less clear cut, and has the additional complication of advancing the public welfare
through increased access to copyright works, without benefiting individuals who are operating illicit
businesses. The social norms of most groups do not award esteem to such individuals, so the
potential for a gap to exist between the social norms and the law is less likely.
However, the gap between the law and social norms that permit, and even encourage, noncommercial infringement, the breaking of TPMs, the stripping of ERM information and the recording
of some performances, is substantial. Efforts to reshape these norms through the expressive
function of law and by rhetorical campaign will be ineffective at best and will be more likely to
achieve the opposite result than that which is intended. The gap simply makes these norms too
“sticky”. The better approach will involve tolerating low level non-commercial infringement, thereby
closing the gap and unstacking the norms. Only if the gap has been sufficiently closed will it be
possible for legislators and copyright owners to act as “norm entrepreneurs”. Following the
recommendations made in Chapter 8 will go some way to achieving this objective, particularly if the
Australian copyright offences are adapted to more closely mirror the copyright offences in the
United States. However, even this may not be sufficient since the tolerated maximum value of $1000
within a 180 day period has been shown to be very easy to reach.
The actions that the Australian government can take have been severely restricted by the various
treaty obligations it has entered into. Unless agreement can be reached at an international level that
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would permit a greater tolerance for non-commercial infringement, it is unlikely that Australia will
be able to take legislative steps to close the gap between norms and the law, without breaching its
existing obligations. All indications show that this is not likely to occur in the very near future,
despite the recent recognition of deficiencies in intellectual property policy for the digital
environment by the Director General of the World Intellectual Property Organization, Dr Francis
Gurry. 1162
It would also appear that the silent majority are no longer prepared to remain silent, as
demonstrated by the campaigns in the United States against the enactment of the Stop Online Piracy
Act 1163 and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual
Property Act. 1164 Political parties are being formed that challenge the legitimacy of intellectual
property. Professor Tim Wu has written that when groups do not want to comply with a law they
react by either avoiding it or by organising to change the law. 1165 These campaigns and organisations
suggest that the avoidance that has taken place over the past fifteen years will be supplemented by
efforts to change the law. We may yet see the type of public representation in the drafting of
copyright law amendments advocated by Professor Jessica Litman in 2001. 1166
While the social norms of file sharing permit non-commercial infringement, these offences are
unlikely to prevent the mass online infringement that commenced in 1999 with Napster. The
offences may be more successful in assisting to prevent commercial infringement, but law
enforcement is unlikely to receive the public involvement necessary to be fully effective. In
summary, this thesis demonstrates that the offence provisions in the Copyright Act 1968 (Cth) will
not be fully effective in preventing copyright infringement and should be amended. Lord Templeton
stated in CBS Songs Ltd v Amstrad Consumer Electronics 1167:
“Whatever the reason for home copying, the beat of Sergeant Pepper and the soaring
sounds of the Miserere from unlawful copies are more powerful than law-abiding instincts

1162

Dr Francis Gurry, ‘The Future of Copyright’ (Speech delivered at the Blue Sky Conference, Sydney, 25
February 2011). Available at http://www.wipo.int/about-wipo/en/dgo/speeches/dg_blueskyconf_11.html
(Accessed 26 August 2012)
1163
H.R. 3261, 112th Congress (2011-2012)
1164
S. 968, 112th Congress (2011-2012)
1165
Wu, T., ‘When Code Isn't Law’ (2003) 89 Virginia Law Review 679
1166
Litman, J., Digital Copyright (2001)
1167
CBS Songs Ltd v Amstrad Consumer Electronics [1988] 2 All ER 484

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or twinges of conscience. A law which is treated with such contempt should be amended or
repealed.” 1168

1168

CBS Songs Ltd v Amstrad Consumer Electronics [1988] 2 All ER 484, 498

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