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House of Representatives Standing Committee on
Legal and Constitutional Affairs Report into Copyright Enforcement: Cracking
Down on Copycats
Summary of Cracking Down on Copycats:
Enforcement of Copyright in Australia
The Report contains a number
of recommendations which either make the process of copyright infringement
litigation or criminal prosecution easier for plaintiffs or increase the
penalties that defendants may face. There are also proposed new offences.
The proposed litigation 'improvements' (a number of which have distinct
civil liberties implications) include:
- the reversal of the onus of proof in civil
(and criminal) cases with respect to ownership of copyright;
- increased powers of civil seizure of
infringing material;
- the withdrawal of the privilege against
self-incrimination in civil proceedings; and
- reversal of onus of proof in relation to
defendant's knowledge in civil actions.
There are a number of other issues of concern
also:
1. (recommendation 3) The Andrews Committee appears to recommend that
the use of circumvention devices be made an offence (though it is arguable that
this recommendation will be satisfied by the present provisions will only
proscribe trafficking);
2. (recommendation 10) A recommendation for
criminal liability for 'licensees' where that licensee has actual or
constructive notice of infringing software held by an employee or agent. This
could mean for example, criminal liability for a University administrator or a
CEO who knew or ought reasonably to have known that employees of the university
or company had made more copies of a piece of software than the body had
licences for.
3. (recommendation 11) The Report recommends that the
possession of infringing software 'up to a certain value' be made a criminal
offence. The Report 'does not envisage that the proposed offence would be used
to prosecute ordinary citizens who possess infringing copies'. However, there
is no reason why this could not occur. Due to the expensive nature of software,
value thresholds are easily crossed; a person with AutoCAD and certain graphic
design applications on their hard drive will be in possession of software to
the value of many thousands of dollars. As the BSAA estimates that 33% of all
copies of software pirated, this proposed offence may make criminals of a
substantial portion of the Australian people.
4. (recommendation 19)
The Andrews Committee has recommended that 'collecting societies should be
authorised to detect infringements and enforce creators rights', allowing them
to offer 'compulsory licences' to infringers.
This recommendation would
allow a collecting society (such as CAL or APRA for example) to detect
'infringements' (the judgement as to what is an infringement would belong to
the society rather than a Court) and offer paid licences, regardless of whether
the owner of the copyright in question is a member of that society. (The
strongest objections to this provision will surely come from copyright owners
who are not members of a society and who will be forced by statute into an
agency relationship with that society. Such owners may discover that users who
they are preparing to sue or settle with have received licences from a society
without their permission).
Such a change would represent a significant
grant of power to collecting societies, effectively turning them into private
(but mandated by law) copyright police forces. It is entirely reasonable that
collecting societies might want to provide copyright enforcement services on
behalf of their members but it is somewhat strange to make them the legal
agents of all copyright owners of a class of work, regardless of whether that
owner joins the society. Surely copyright owners (particularly those who are
not members of the collecting society in question) would prefer to be informed
of a potential infringement of copyright rather than have the society offer a
licence on their behalf?
The full report can be found at:
http://www.aph.gov.au/house/committee/laca/copyrightenforcement/contents.htm
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