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 devices.

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’ monopolies.”

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@ip-watch.ch.