Broad ranging amendments to the Copyright Act which (in part) implement obligations under the Australia-US Free Trade Agreement (AUSFTA) were introduced into parliament on October 19, 2006. They serve to bolster the power of copyright interests through the introduction of a series of new criminal offences and the extension of prohibitions on circumventing technological locks. They “balance” this with the introduction of some narrowly defined user rights.
The criminalisation of copyright infringement
The ramping up of criminal responsibility for copyright infringement follows a trend most explicit in the US of prosecuting and jailing copyright infringers.
This is a major shift for copyright law which has traditionally remedied infringement with civil liability, such as damages. The criminalisation of copyright infringement which has been evolving over the past few years makes sense when we think of organised crime syndicates producing and selling large quantities of CDs and DVDs. However, it seems outrageous when we think of the possibility of a 14-year-old child being labelled a criminal for distributing an infringing copy of a song in a way that “affects prejudicially the owner of the copyright”.
Further, imagine a 14-year-old girl videoing herself lip-synching to her favourite pop tune and uploading this to a video sharing website like YouTube. This is an activity that copyright owners around the world are already saying is something that is against their interests.
Under the new regime the mere doing of this act has the real potential to lead to a significant fine and if it can be shown that such an act was accompanied by negligence or recklessness, the 14-year-old child could be in even more trouble.
The introduction of “strict liability” offences (meaning just doing the act regardless of intent is enough) and summary offences that could lead to imprisonment where someone is merely “negligent” in infringing, make the new copyright landscape alarming, particularly as almost everything we do nowadays brings us into contact with copyright material.
These new provisions have the potential to make everyday Australians in homes and businesses across the country into criminals on a scale that we have not witnessed before. Add to this remodelled evidentiary presumptions that favour copyright owners (in many cases large multinational corporations) and you might be left thinking whether the information superhighway is worth the risk.
One thing that the Internet revolution has shown is that there is an enormous economy in services that provide us with the ability to access and use information. Some of the highest valued corporations on the planet are information service companies like Google, MySpace and Youtube. These businesses dared to do something different and provided interesting new services and spaces; yet any new Australian start-up trying to emulate similar business models after January 1, 2007 will most likely find themselves before the criminal courts or paying out substantial on the spot fines.
Innovation relies on diversity, experimentation and good old fashioned luck. It remains to be seen whether these kinds of success factors can survive this new suite of criminal provisions. If we are to be competitive in the global services economy, this seems an odd way to achieve it.
When you consider that a 10 to 14-year-old child can be held criminally responsible if the prosecution can show they knew what they were doing was wrong, this heavy handed approach to copyright infringement is far from satisfactory. What next - 10 or 12-year-olds fronting criminal courts or being slapped with significant on the spot fines because they distribute a copy of a song they ripped off their latest CD to a group of their friends?
The answer to this kind of activity is not to criminalise the acts of Australians but to educate them and to encourage the existing businesses to adapt their business models, as Apple has with iTunes, to more readily accommodate the practices of the digital generation. A prosperous Australia will not ride on the back of making large numbers of our young people criminals for activities they regard as everyday social practice.
User rights and liabilities
Many Australians believe that in signing up for the AUSFTA we should have received not only the more onerous copyright term and infringement provisions of US law, but also a liberating US-styled fair-use provision.
Professor Brian Fitzgerald is Head of School of Law, Queensland University of Technology. He is co-editor of one of Australia's leading texts on E-Commerce, Software and the Internet - Going Digital 2000 - and has published articles on Law and the Internet, Technology Law and Intellectual Property Law in Australia, the United States, Europe and Japan.