Ruddock on Simpsons bootlegging and recent criminal copyright changes
The Commonwealth Attorney-General Phillip Ruddock has issued a press release (not yet available online) as follows:
ACTION ON ALLEGED FILM PIRACY OF THE SIMPSONS
An investigation in relation to alleged piracy of The Simpsons Movie, demonstrates the Government is serious about protecting creative works Attorney-General Philip Ruddock said today.
Mr Ruddock said the government recently made significant changes to copyright laws introducing a range of measures including the ability to track and recover proceeds of serious copyright crimes, and strengthening evidential presumptions in copyright proceedings.
"Australia has been at the forefront of copyright law reform to ensure that law enforcement and industry have the necessary tools to tackle piracy at all levels", Mr Ruddock said.
"To support the legislative changes, the Government has provided the Australian Federal Police and the Commonwealth DPP with $12.4 million over two years, for investigating and prosecuting serious and complex intellectual property crime, and to pursue proceeds of such crimes."
"Film piracy doesn't only hurt Hollywood, it hurts Australia's film makers, businesses, workers and consumers," Mr Ruddock said.
A search warrant was executed in Sydney yesterday by the AFP following the receipt of information from the Australian Federation Against Copyright Theft (AFACT). As a result a 21 year old man will appear in a Sydney court in October.
If any member of the public has any information related to copyright piracy, they should contact the Australian Federal Police or their local State police.
Note: AFACT has a nationwide 24 hours a day hotline that enables the reporting of film copyright theft: 1800 251 996 and an email contact facility through http://www.moviepiracy.org.au
I take issue with a number of claims made by Mr Ruddock. Setting aside the changes in relation to evidential presumptions (I think it safe to assume that 20th Century Fox would have little difficulty establishing that they own the copyright which subsists in the cinematograph film in question) and the tracing of proceeds (I think it safe to assume that there are none in this case), let's compare the "new" criminal offences with the "old" criminal offences and see whether Mr Ruddock's "significant changes" would make any difference to how this case plays out.
Assuming that the alleged bootlegger has been charged under the new "commercial scale" offence in s 132AC of the Copyright Act 1968, it provides:
Let's compare that against the old "commercial scale" offence in s 132(5DB):
132AC (1) A person commits an offence if:(a) the person engages in conduct; and(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.
(b) the conduct results in one or more infringements of the copyright in a work or other subject-matter; and
(c) the infringement or infringements have a substantial prejudicial impact on the owner of the copyright; and
(d) the infringement or infringements occur on a commercial scale.
132(5DB) A person commits an offence if:Apart from the new offence being an indictable offence and the old offence being a summary offence, there is no difference in the provisions. The elements of the offence are the same, the penalty is the same. Not a great surprise, given that s 132(5DB) was only inserted in 2004 by the US Free Trade Agreement Implementation Act 2004. There is a new summary offence with a 2-year penalty in s 132AC(3) that applies where the defendant was negligent as to the results in elements (c) and (d) of the offence.(a) the person engages in conduct; and...
(b) the conduct results in one or more infringements of the copyright in a work or other subject-matter; and
(c) the infringement or infringements have a substantial prejudicial impact on the owner of the copyright; and
(d) the infringement or infringements occur on a commercial scale.
(6A) A person who contravenes subsection (3) ... (5DB) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.
Turning to the "new" "device" offence in s 132AL: (emphasis added)
132AL(1) [This subsection deals with "making" a device rather than "possessing" one, but is otherwise the same as subsection (2)]Let's compare that against the "old" offence in s 132(3): (emphasis added)
(2) A person commits an offence if:(a) the person possesses a device, intending it to be used for making an infringing copy of a work or other subject-matter; and(3) An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both.
(b) copyright subsists in the work or other subject-matter at the time of the possession.
132(3) A person shall not, at a time when copyright subsists in a work, make or have in his or her possession a device that the person knows, or ought reasonably to know, is to be used for making infringing copies of the work.The wording of these offences differs significantly, especially in regards to the level of knowledge required. The new offence requires intention, whereas the old offence requires merely that the person knew or ought reasonably to have known that the device would be used for infringing activity. This change has arguably raised the bar and made it harder to prosecute people for making or possessing a "device" -- at least if you want to use the 5-year offence against them.
(4) The preceding provisions of this section apply in relation to copyright subsisting in any subject-matter by virtue of Part IV [ie "subject matter other than works" such as the cinematograph film in issue here] in like manner as they apply in relation to copyright subsisting in a work by virtue of Part III [ie "works"].
If the prosecution is content with a 2 year maximum sentence, they can use the summary offences in ss 132AL(4) and (5), where the prosecution must only establish that the defendant was negligent as to the infringing nature of the copying. Negligence as a fault element is defined by s 5.5 of the Commonwealth Criminal Code:
A person is negligent with respect to a physical element of an offence if his or her conduct involves:Kim Weatherall has previously blogged about the difficulties of applying the concept of criminal negligence to copyright infringement. Like her, I don't even want to think about trying to find a copyright analogy to accidentally torching your girlfriend while attempting self-immolation as proof of your love for her; or chasing trespassing children off your property with a front-end loader and running one down. The first judge to consider these provisions has my condolences.(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; andthat the conduct merits criminal punishment for the offence.
(b) such a high risk that the physical element exists or will exist;
There is also a strict liability offence in s 132AL(8) for making (but not possessing) a device that "is to be used" for making an infringing copy -- whether the defendant knows it is an infringing copy or not.
Whatever meaning you want to assign to "criminally negligent manufacture or possession of a device", the summary "negligence" offences clearly fall somewhere between the intent-based indictable offences and the strict liability offences. For that reason, they're arguably the closest match for the "knew or ought reasonably to have known" 5 year offence that used to exist in s 132(3).
The 2006 redrafting of s 132(3) therefore has good news and bad news for everybody. Good news for the copyright holders: you can criminally prosecute people for making a device, even if they didn't know it would be used to infringe copyright (subject to a defence of mistaken belief of fact - as discussed in earlier Kim's posting). It's also easier to prosecute for the "commercial scale" offences because of the new summary offence with the fault element of negligence.
Bad news for copyright holders: people who did not intend a device to be used for infringing activities, but who "ought reasonably to have known" that it would be, will no longer be subject to the 5-year offence, and will only be subject to the 2-year offence if their conduct meets the Criminal Code definition of negligence excerpted above -- which it may or may not do.
(Of course, the meaning of the fault element of intention within the Criminal Code is a whole other issue, and one that I shall blog about another day.)
Dragging this posting back towards the point: If, in the current bootlegging case, the prosecution throws the book at the defendant -- that is, charges him with the 5-year indictable offences, the 2006 redrafting has not changed the "commercial scale" offence, and has made the "device" offence harder to prove by requiring intention instead of actual or constructive knowledge. Net result is unfavourable to the prosecution.
Also, because the 5-year offences are now indictable instead of summary, s 80 of the Constitution requires a trial by jury. I don't know what the incidence of jury nullification is like in Australia, but given that the public generally seems to be losing respect for copyright law, it would not surprise me if a jury baulked at convicting someone for one of these over-broad offences (which the jury members themselves might even have committed!).
If the prosecution goes for the 2-year penalties, the 2006 redrafting benefits them because there was previously no "commercial scale" offence with a fault element of negligence. This is offset by the "device" provision being harder to prove -- the standard of criminal negligence arguably being higher than what a person "ought reasonably to have known". Net result? Open to argument.
The strict liability offences created by the 2006 redrafting will not assist the prosecution. There is no strict liability "commercial scale" offence, and there is no strict liability offence for possessing a device, only for making one -- and I'm guessing that the alleged bootlegger didn't "make" his mobile phone.
All in all, I don't think the 2006 redrafting will provide any significant assistance to the prosecution in this bootlegging case. Perhaps Mr Ruddock's talk about being at the "forefront of copyright law reform", and generally taking credit for the charges against the alleged bootlegger, was meant to refer to the 2004 amendments which first created the "commercial scale" offence. Call me a cynic, but the 2004 amendments were forced on Australia by the Australia-United States Free Trade Agreement.
They didn't result from Australia being on the "forefront of copyright law reform", they resulted from Australia being on the receiving end of a raw deal.
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