Australian copyright infringement plan
p2pnet news | Freedom:- The Australian Attorney Generals Department has recently released the draft guidelines implementing the Infringement Notices and Forfeiture of Infringing Copies and Devices Scheme. This follows on from the Copyright Amendment Act 2006 (Cth) which introduced three levels of penalties for copyright infringment – strict liability offences, summary offences and indictable offences.
The scheme in question relates to the strict liability offences which are the lowest level sanctions and enables the serving of on-the-spot penalty notices for infringements considered not to be so serious as to warrant formal prosecution in the court.
As with many penalty notice schemes, criticisms arise as to the level of discretion and lack of accountability of those with the power to issues such notices. The draft guidelines can be located here and public comments are being accepted until the 5th October 2007.
And after you read the following I certainly hope many people will take the opportunity to submit comments to the Attorney Generals Department.
The range of offences to which penalty notices can apply are listed on page 5 and include the following:
Remedies and Offences
- 132AD(5) – Making infringing copy commerically
- 132AE(5) – Selling or hiring out infringing copy
- 132AF(7)&(8) – Offering infringing copy for sale or hire
- 132AG(7)&(8) – Exhibiting infringing copy in public commercially
- 132AH(5) – Importing infringing copy commercially
- 132AI(7 – Distributing infringing copy
- 132AJ(5) – Possessing infringing copy for commerce
- 132AL(8) – Making (or possessing) device for making infringing copy
- 132AO(5) – Causing recording or film to be heard or seen in public
- Performers Protection – General Offences
- 248PB(5) – Unauthorised indirect recording during protection period
- 248PF(5 – Copying unauthorised recording
- 248PG(5) – Unauthorised copying of exempt recording
- 248PH(5) – Unauthorised copying of authorised sound recording
- 248PI(5) – Selling etc. unauthorsed recording
- 248PJ(7) – Distributing unauthorised recording
- 248PK(5) – Commercial possession or import of unauthorised recording
- 248PL(5) – Exhbiting unauthorised recording in public by way of trade
- 248PM(5) – Importing unauthorised recording for exhibition by way of trade
There’s more, but you get the general idea…
To serve an infringment notice an authorised person (ie. State or Federal police officer) must have reasonable grounds to believe that all the elements of the infringement notice offence are present, they must be of the view, given their discretion, that a penalty notice should be issued, the alleged offender must ‘voluntarily’ forfeit any infringing copies or devices and then the infringement notice must be completed and served on the alleged offender. There are a range of factors that can be considered in making this determination (although it is stressed these are just a guide and are not compulsory) – these include the appropriateness of a notice as a penalty, the significance of the breach, estimated value of the goods and other relevant factors.
This is then further explained as including factors such as the nature of the breach and the nature of the goods, the volume of the goods to which the breach relates, whether the breach was carried out in an ‘organised’ manner, the likeihood of the notice being a deterrent, whether a warning would be more appropriate or indeed whether a warning has already been given and whether the recipient is a first time offender.
The level of discretion of the police officer is clearly very wide, but it is paragraphs 30 to 32 which provide most of the concern. Here it is stated that where more than one strict liability offence has been committed an authorised officer has the power to determine how many infringement notices can be served. The example given is that if a market stall owner ‘has 20 pirated Dandy Warhol CDs for sale and an assortment of 20 other individual priated CDs for sale…
Technically, for each song, there would be a separate breach’. Now would be a good time to point out the an infringement notice is 12 penalty units – thats an automatic $1,320 fine each and every time. Unless you are a corporation in which case the penalty is 60 penalty units or $6,600 (each). This is after all, the low end of the scale…
Given that a person only has 28 days (not including Sundays and public holidays) to pay the penalty notice(s) this could end up being a huge burden in some cases. A person can apply to the ‘nominated person’ (who is defined as ‘A Commonwealth Official from an Australian Government Department’ – ie. we havent worked that bit out yet…) for a further 28 day extension and this person can also allow for payments to be made in installments.
There is no guidance as to whether installments have to be paid within 28 days or whether they can be paid in 56 days or some other period of time – in fact the guidelines as to installments are accidentally a total reprint of the guidelines for extension applications… clearly not very guiding at all on that point.
The example notice attached in Schedule 11C notes that refusal for an extension of time or refusal to allow payments to be made by installments means that payment must be made within 7 days of receiving that refusal – so dont apply the day you are issued with the fine – wait until the period for payment is nearly up or you could well end up with less time than you started with (although thats assuming the decision to refuse is made quickly which is perhaps not likely).
The other compelling issue is that of forfeiture of copies and devices. As required, the authorised person is to inform the alleged offender that to recieve a penalty notice they are required to voluntarily forfeit these items – how much choice is there really in a phrase like: if you dont forfeit this stuff I will prosecute you and you will be required to attend a court and pay for a lawyer??
In the event the person does hand over these items, the office is to issue them with a receipt, the goods are to be kept until the matter goes to court or payment of the penalty notice is made and at this point the goods are destroyed.
In the midst of discussing this so called ‘voluntary forfeiture’ paragraph 37 drops in nicely, that where goods are seized this will be in accordance with the procedures of the State or Federal police… but theres no other mention as to how seizure might be relevant within the scheme.
A person may also seek withdrawal of an infringement notice – they can apply to either an authorised person (police officer) or a nominated person (TBA). If an application is made to an authorised person, a different authorised person other than the one that issued the notice is to decide the matter on its merits – there is no appeal avenue to the Administrative Appeals Tribunal but the defendant has, as always, the ‘choice’ of not paying the fine and going to court.
If, on the other hand, a nominated person determines not to withdraw a penalty notice, they must give reasons within 14 days (not including Sundays and public holidays) and the decision can be appealed to the AAT.
So make your choice wisely. Interestingly, one of the grounds on which a notice can be withdrawn is the determination that prosecution is more appropriate – again think carefully about this – would be a real shame to end up worse off than you already are… The maximum penalty if these offences go to court are 60 penalty units for an individual ($6,600) or 300 penalty units for a corporation ($33,000) – for each penalty notice (remember there may be more than one).
If the notice isn’t paid in time or withdrawn for any reason, the alleged offender is still potentially liable for the offence and a brief is to be prepared for the Director of Public Prosecutions to determine whether there is sufficient evidence to take the matter to court – they may not take it to court… but then again they might and wouldnt that be a dandy use of taxpayers money.
Lastly, a penalty notice should be issued on the spot, but luckily the guidelines allow for it to be issued within 12 months if need be. Interestingly no mention is made of where any of the money goes – I assume into the general revenue for the government (probably Federal) and which begs the question, as is often raised with respect to speeding and other traffice offences, whether there might be potential or desire to ‘raise money’ using this scheme.
Overall the scheme places way to much discretion in the hands of police and offers little in the way of meaningful oversight.
The main concern, as raised above, is really the unlimited opportunity to issue as many notices as a police officer deems necessary.
The threat of larger fines if the matter goes to court is likely to compel payment of the notices without challenge and whilst relieving the courts of the more petty claims will also likely impact on the frequency with which warnings are given and in the end fairness and justice itself.
This has the potential for abuse written all over it and if nothing else should be changed to at least provide a limit on the number of infringement notices that can be issued.
If you have concerns, please email them to the Attorney Generals Department today:.
Sally Hawkins – p2pnet, Australia
[Hawkins is a former musician and songwriter who decided to study law after doing a course in Music Business Management in 1991; she’s worked for various departments in both federal and state Australian governments, holds a Bachelors Degree in Legal and Justice Studies (Criminal Law), a Bachelor of Laws (Honours) and is currently a postgraduate student with Southern Cross University writing a thesis on Copyright Law/P2P File Sharing, and working on her PhD.]
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October 4th, 2007 at 7:08 pm
So let me get this straight, instead of paying what would be reasonable fees in a case like this, reflecting the corporation’s true loss in a case like this per song plus the corporation’s legal fees, the music lobbyists have convinced law drafters to make it a stupidly exorbitant fine for each and every song?!
Well at least we’ve got an election coming in the next couple of months so if this law gets through, the government will have an even higher chance of getting their asses kicked out the door. Some government really needs to stand up to these bullies and make copyright laws that make sense instead of extending copyright to a stage where we’re all going to end up throwing copyright lawsuits at each other for something as simple as a freaking toothbrush design.
These greedy companies need a serious wake up call.