New laws make copyright infringment a criminal offence

[Robert]

The Australian Government continues to suck up to overseas corporations by drafting new laws which make copyright infringement a criminal offence.

Owning an iPod, camera phone or a DVD recorder might be enough to land you in jail or lumbered with a large fine under the Federal Government's proposed new changes to the copyright laws, experts warn.

 

Dale Clapperton, vice-chairman of the non-profit organisation Electronic Frontiers Australia (EFA) said the changes proposed in the Copyright Amendment Bill 2006 greatly "lower the standard of proof" required to charge someone with copyright infringement.

 

Professor Brian Fitzgerald, head of the Queensland University of Technology's school of law, agreed. He noted in an article submitted to the Online Opinion journal: "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."

 

Senators from both the Labor and Democrat parties have spoken out against the changes, noting that the government is trying to push the long, complex bill through parliament before it's been properly examined.

 

As the bill currently stands, even if you genuinely didn't know you were breaking the law, you could still be slapped with large fines and even taken to court, Mr Clapperton and Mr Fitzgerald said.

 

Section 132AL(2) of the bill provides that a person commits an "indictable offence" if they possess "a device, intending it to be used for making an infringing copy of a work or other subject-matter".

 

This is the most serious offence for an individual technology user, as it means they've intentionally broken copyright law. It is subject to a penalty of five years in jail, a fine of up to $65,000, or both.

 

The "device" cited could be an iPod, or any other piece of technology that could be used to infringe copyright, such as any MP3 player, a camera phone, a VCR or a DVD recorder.

 

Under proposed new copyright laws, loading tracks onto a music player, which have been copied from a CD, would be classified as infringing copyright. This would apply even if that CD was legitimately purchased.

 

Ironically, exceptions in the bill were supposed to legalise copying music from a CD to a device such as an iPod but Kim Weatherall, law lecturer and associate director of the Intellectual Property Research Institute of Australia, said the exceptions were too narrowly drafted.

 

The exceptions allow users to make one "main copy" of a CD as well as "temporary copies", but the temporary copies must be destroyed at the "first practicable time".

 

Loading music onto an iPod involves having one copy on the device and another on the computer in iTunes, meaning the user has two main copies in addition to the original CD. This is illegal even if the new bill is passed.

 

"We are ending up with highly qualified, detailed, legislative language, which is so specific that it fails to work," Mr Weatherall said.

 

"If it doesn't work on current technology, it won't work in the future, either. In an attempt to get certainty, what we have instead is technology specific, useless exceptions."

 

But the law doesn't just apply to intentional copyright infringers. Attorney-General Philip Ruddock's bill introduces two new offences - summary and strict liability - making it markedly easier to charge people with a criminal offence for breaking copyright law.

 

The more serious of the two new offences is the "summary offence", which applies to those who haven't intentionally made infringing copies, but were "negligent" or careless in doing so because they should have known better.

 

This comes with a penalty of up to two years in jail and-or a $13,200 fine.

 

But even if they can't prove you were negligent and you genuinely didn't know you were breaking the law, the strict liability provisions mean you could still be issued with a $6600 fine.

 

"What strict liability means is that a person can be liable for these offences in the absence of proof that they knew they were dealing with infringing copies or performances that were infringements," Mr Weatherall said.

 

This, for example, could apply to a person who taped Sale of the Century for later viewing, said Mr Clapperton.

 

All of the above offences could involve the individual being taken to court and, subject to the court's discretion, receiving a criminal record.

 

However, a new "infringement notice" scheme means that, instead of charging you with a strict liability offence, police could simply issue you an on-the-spot fine of $1320.

 

If the bill is enacted, "Australia will be the only country in the world that has strict liability offences for copyright," Mr Clapperton said.

 

Mr Ruddock defended the changes last Tuesday, saying that copyright offences already attracted criminal penalties.

 

But Mr Clapperton disagreed and said the new laws would make it "much, much, much" easier to prosecute individuals for copyright infringement.

 

"Under the new changes it's lowered the standard of proof," he said.

 

"They would only have to prove negligence in the case of the summary offences, or they wouldn't have to prove fault at all for the strict liability ones."

 

Under current copyright laws, no technology users in Australia have been charged with copyright infringement. However, thousands have been sued in the US, including "grandmothers who don't have computers" and "dead people", Mr Clapperton said.

 

"What EFA is very much concerned about is that thousands of people are being sued on the basis of inaccurate information

 

"We're afraid that we will see this in Australia except, instead of suing them, they will have them charged under the new criminal provisions."

 

In a letter published in last Thursday's Herald, titled "Specific aim to fines", Mr Ruddock said that "the fines are aimed at market-stall operators selling pirated copyright material, not to 'trick' consumers".

 

To this, Mr Clapperton said the bill should then be modified to remove the criminal provisions relating to individuals.

 

"If they're not planning to enforce these laws against individuals, then they should rewrite these laws so that they don't apply to individuals," he said.

 

"We shouldn't be relying on the police to decide who to charge and who not to charge."

 

A spokesman for Mr Ruddock said the purpose of updating the copyright laws was "to take advantage of new technologies".

 

The bill has already gone through the lower house, and was recently reviewed by the Senate Committee on Legal and Constitutional Affairs.

 

The committee - based on written submissions by various groups and public hearings - recommended a number of changes to the strict liability offences. The purpose of the changes was to ensure the new laws didn't capture "innocent" consumers, who didn't have the intention of infringing copyright.

 

The Government is considering the recommendations.

 

A number of groups made submissions criticising the changes, including Apple, maker of the iPod.

 

"Apple submits that the current provisions of the bill will leave the [Australian Copyright] Act still outdated and overly restrictive given today's technology and the legitimate expectations of consumers," Apple's submission said.

 

"Many common everyday acts of copying to ... devices, such as an iPod, computers and even to VCRs ... would still constitute an infringement under the bill's current form."

 

Mr Ruddock's spokesman said "it's likely we'll bring some amendments to the Senate", but currently there are no plans to remove the criminal provisions relating to individuals.

If this makes it into law they can go fck themselves.

 

Source

[BlackKnight]

Umm. crap. A few weeks ago my ISP sent an email suggesting that they now have the right under new federal authority to convey my usage details to authorities without regard to privacy terms of service etc etc. I thought it was just a scare tactic. I'll PM anyone who wants to read it. this Gestapo crap pisses me off.

 

Anyway, W.t.f.

[Bobdrakke]

I heard about this at Slyck its disgusting the same here in the UK regarding fair use copies as it stands its illegal to do so but no one yet enfoces this when used for private use.

 

What Vexes me most is they are out to get the consumer, what about the companies that make mp3 player like ipods, dvdrw burners etc they make device and its legally sold yet to use it you're breaking the law.

 

So where are the lawsuits for manufacturers whats good for the goose is good for the gander. I would like to see MS, Apple, Sony etc face charges for supply goods that break copyright infringements. We won't see that because their business make money = tax, so whatever is good the government and friends goes twofaced or what.

[Mooney]

Well, know you all know how I feel. But at least you guys don't have to worry about the MPAA. They usually fine a copyright violator $150,000 per piece of copyrighted material that was illegally obtained, in addition to a prison sentence.

[Calum]

In the uk here I believe there is a law about listening to music... I'm not sure what it is but, i'll try and find out.