[Linux-aus] Fwd: [A2k] IP-Watch: Australia Eyes No-Fault Copyright Infringement Offences

Janet Hawtin lucychili at gmail.com
Sat Nov 18 11:14:03 UTC 2006

Kim Weatherall quoted on IPWatch:


Australia Eyes No-Fault Copyright Infringement Offences
By Dugie Standeford for Intellectual Property Watch

Australia is poised to become the first country to make copyright
infringement a "no-fault" offence, a move aimed at broadening criminal
penalties for infringement.

The change is part of sweeping revisions intended to bring Australia's
Copyright Act 1968 into the digital age and compliance with the
Australia-United States Free Trade Act (AUSFTA), also includes new
provisions on time- and format-shifting, exceptions to copyright and
technical protection measures (TPMs). The bill, which has sparked
strong debate, is on a fast track and is expected to receive
parliamentary approval next month.

Strict liability forms part of a new tiered penalty system for
commercial and non-commercial copyright violations that also includes
summary and indictable offences. No-fault penalties, which do not
require proof of motive or knowledge in carrying out infringing
activities, were added to give police and prosecutors a wider range of
options against suspected offenders, according to a federal government
explanatory memorandum.

"Innocent and Misguided Infringements"

In its 13 November report, the Senate Legal and Constitutional Affairs
Committee noted that "in other common law countries such as the United
Kingdom, Canada and the United States, offences of strict liability do
not exist in copyright law." Moreover, the AUSFTA does not require the
creation of such offences, nor does the concept of strict liability
exist in Australian patent or trademark law.

The proposal attracted ardent backers and foes, lawmakers reported.
Some copyright owners predicted no-fault penalties would halt low-scale
infringement before it spiralled out of control, while others worried
it would allow police to charge alleged offenders with lesser strict
liability or summary offences instead of indicting them. Opponents said
the measure would end up unduly criminalising legitimate conduct.

The committee sided with calls to narrow strict liability provisions to
prevent them from being applied to "innocent and misguided
infringements" by ordinary Australians and legitimate businesses." It
asked the federal government to consider a "first infringement or
warning" scheme where only subsequent similar violations would be
penalised. It also recommended guidelines be developed for managing
strict liability offences and infringement notices.

The recommendation to narrow the criminal provisions and give user
groups a voice in developing enforcement guidelines is "important,"
said Kimberlee Weatherall, associate director of the Intellectual
Property Research Institute of Australia and a law lecturer at
Melbourne University. However, she said, the committee "somewhat too
readily accepted the assertion" that broad criminal provisions were
needed and took it "essentially on faith that those provisions won't be
broadly enforced."

Introducing strict liability offences for non-commercial-scale
infringements leaves "too much scope for unsuspecting users to be
criminalised - where they are not in other countries and where to do so
will either leave the law unenforced or will dramatically shift the
balance in copyright law in favour of rights holders and against
society generally and the new digital industries in particular," said
Internet Industry Association Chief Executive Peter Coroneos.

Extending the penalties for possession of devices used for making and
distributing infringing copies will deter the use of technologies
unrestricted in other places, Coroneos said. Even the manufacture of
devices used to infringe could be caught by the law, something a court
will have to decide. Internet service providers and other network
operators, including mobile phone carriers, may also be at risk since
distribution liability may extend to them as well as a result of acts
of their customers, he said.

What About my iPod?

One of the government's key selling points in revising the Copyright
Act was that it would allow Australians for the first time to copy
content for viewing at a later time and on different devices. Copyright
groups generally opposed the idea in the absence of private-copy levies
on media such as CDs and DVDs, the Senate report said. Consumers,
however, worried that the "one copy in each format" exception would
limit their use of iPods and similar devices.

"The committee considers that all aspects of the use of iPods and
similar devices, which includes storage of music collection libraries
on personal computers, should be included in the bill," lawmakers said.
They recommended an amendment recognizing consumers' use of such

Technical Protection Measures

Controversy also swirled around whether the bill does – or should –
link protection of technical measures that control access to
copyrighted content under the Copyright Act to actual prevention of
copyright infringement. Digital rights groups and others argued that
AUSFTA requires that link. Copyright organisations sided with the
government position that such a connection is not necessary. Others
worried the TPM measures could be used to hamper interoperability or
stifle competition.

Faced with conflicting evidence, the panel urged the government, "at
the very least," to align the bill's definition of TPM with that of the
term "access control technological measure" used in the copyright law.
It suggested inclusion of a clear interoperability exception, and said
consumers should be protected from contracting away their rights under
TPM exceptions.

The International Intellectual Property Association (IIPA), a coalition
of U.S. copyright-based organisations, criticised the panel's TPM
recommendations. IIPA "believes the bill text more closely approaches
compliance with the requirements" of the free trade pact "than the
approach proposed by the committee," IIPA's Steve Metalitz said.
Weatherall, however, praised lawmakers for linking anti-circumvention
laws more closely to copyright protection than to "copyright owners'

The government, which is not required to consider the committee
recommendation, has apparently indicated it will respond to various
concerns, Weatherall said. The amended measure could then be
reintroduced for passage by both Houses in early December, with much of
it coming into force in January.

The biggest problem may be that no one understands it. Average users
will have "little chance of modifying their behaviour to stay within
the law when even copyright lawyers" are finding it hard to figure out,
said Coroneos.

The committee made "no real attempt to address the amazing complex mess
the Copyright Act has now become," said Weatherall. "Frankly, it will
be impossible to explain these laws simply to anyone."

Dugie Standeford may be reached at info at ip-watch.ch.

Thiru Balasubramaniam
Geneva Representative
voice +41.22.791.6727
fax +41.22.723.2988
mobile +41 76 508 0997
thiru at cptech.org
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