A Senate Committee inquiring into the controversial Copyright Amendment Bill 2006 has issued a report recommending changes to the Bill. Electronic Frontiers Australia (EFA) today cautiously welcomed the report of the Senate Legal and Constitutional Affairs Committee but expressed concern that the Committee did not recommend the criminal provisions be deferred until next year.
The Bill as currently drafted significantly extends the criminal provisions of Australian copyright law. It introduces new summary and strict liability offences, which lower the threshold for criminal conduct. If enacted, Australia will be the only common-law country in the world with strict liability offences relating to copyright.
The new strict liability offences, which carry a maximum penalty of a $6600 fine, will be coupled with an "infringement notice scheme" that will allow police to issue on-the-spot fines of $1320.
"EFA has grave concerns about the criminal provisions of this Bill," said EFA Vice-Chair Dale Clapperton. "The effect and the purpose of these amendments is to 'lower the bar' and make it easier to use the criminal justice system to prosecute alleged infringers."
"Although groups lobbying on behalf of copyright owners maintain that these changes are not targeted at individual end-users, they have strenuously opposed moves to change the Bill to ensure that the every-day activities of thousands of individual Australians are not criminalised."
"When copyright lobby groups talk about more than 20% of all Australians being 'currently involved in the types of infringing behaviour the Government expressly intends and needs to deter', and give examples including making 'illegal copies of film and television programs for work colleagues and friends' it becomes clear that everyday Australians are being targeted."
"While this type of activity is an infringement of copyright and we do not condone it, it should not be a criminal offence."
As an example of the overbreadth of these new provisions, section 132AL(2) provides that it is an indictable criminal offence, punishable by up to 5 years jail and/or a fine of up to $65,000, to possess a "device" (such as a VCR, an ipod, an MP3 player, or a personal computer) with intent to use it to make an infringing copy - even if making the copy itself is not a criminal offence. A separate strict liability offence applies for the same type of conduct.
Many other examples have been given by industry groups of every-day conduct which would be a criminal offence under the Bill - including singing "Happy Birthday" at a birthday party in public place (an unauthorised public performance of a copyright song) or using a mobile phone to record part of a live performance for your own personal use (an unauthorised recording of a performance).
The report of the Senate Committee agreed that the criminal provisions of the Bill could be drafted more narrowly, and recommended that the government "re-examine with a view to amending the strict liability provisions in [the Bill] to reduce the possible widespread impact of their application on the activities of ordinary Australians and legitimate businesses."
The Committee also recommended that the government consult with groups representing users of copyright material when developing guidelines for the enforcement of the new laws.
"While EFA recommended that the criminal provisions be deferred until next year, narrowing the drafting of these offences will help to ensure that the actions of individual end-users are not unfairly criminalised," said Clapperton. The Labor and Democrats Senators on the Committee also recommended that the criminal provisions be deferred.
"The proper place for criminal offences in copyright is targeting people who produce and sell counterfeit ("pirated") copies of copyright material. Criminal law should not be going after people in their homes for non-commercial infringements of copyright," he continued.
"We are eagerly awaiting the government's response to the report's recommendations."
-- Ends --
- Background information
- Contact details for media
EFA submission to the Committee inquiry into the Bill:
The Committee's report:
Internet Industry Association press release on the criminal provisions of the Bill:
Electronic Frontiers Australia Inc. ("EFA") is a non-profit national organisation representing Internet users concerned with on-line rights and freedoms. EFA was established in 1994, is independent of government and commerce, and is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting online civil liberties.
Mr Dale Clapperton
Phone: 0416 007 100
Email: dclapperton at efa.org.au
Electronic Frontiers Australia Inc -- https://www.efa.org.au/