LEGALLY SPEAKING

Copyright: crime and private use – Paul Sugden

For this issue and the next I will examine the changes implemented in the Copyright Amendment Act 2006 which has introduced amendments from a number of reviews including the Fair Use and Other Copyright Exceptions Review.

The main changes deal with:
 The fair use changes and allowances for private copying in certain circumstances;
 The introduction of a new regime of criminal offences for copyright infringement;
 Changes to the definition of “article” to include electronic copies of the work which can be downloaded;
 Amendments to the “Notice of Objection” provisions to customs, reducing the administrative and cost burden on rights holders.

You may ask, what do these changes mean for the textile creative?

The two main areas that will be examined are the criminal provisions, and the fair use and private copying provisions. Yes, copyright has a criminal side!! This is generally a shock to most people: when they consider their knowledge of copyright they don’t think of copyright as a criminal action, but only as a civil action. However copyright has a long history of criminal provisions as an alternative to civil actions, but they have not been commonly used when one looks back over the history of this aspect of copyright.

The criminal side is generally reserved for illegal reproductions of a commercial scale such as the examples of DVD, CD and other forms of piracy that have flourished and become more prevalent with the internet. Even the textile creative can find, for example that their textile designs are being copied or produced in a commercial quantity by another person. And with the internet, plus access to designs locally and overseas, the ease with which copying to a commercial scale can take place is worth noting.

In other words there are textile pirates out there just as there are DVD and CD and computer program pirates roaming the internet for the next free load.

Admittedly with creation of textiles there is a greater investment in processing and manufacture compared with the ease of copying that has resulted from the digital revolution, but screen printing designs is one of the easier copying techniques, and in the civil arena we have seen aboriginal paintings being sent to Vietnam to be produced as carpets, then imported back to Australia (Millpurrurru v Indofum Pty Ltd (1994) 30 IPR 209) - so it can be done. See also the article on Samantha Fermo and the infringement of the carpet design (this magazine, issue #52 for 2000).

The ‘criminal provisions’ now provide a three tiered approach to combatting these problems. Indictable offences with penalties of up to five years in jail have been created along with summary offences with only a 2 year jail term; and a new category of strict liability offences with on-the-spot fines.

The indictable offences and summary offences deal with possession, production and distribution of infringing items and have different levels of fault (or the level of the criminal mind) to produce the offence. The indictable offences have a criteria that the infringer had to be reckless in their awareness of the copyright and continued regardless; whilst the summary offences involved a party being negligent in that they fell short of the standard of care that a reasonable person would have taken to ensure that the product was copyright protected and owned by someone – yet they copied regardless.

Both these offences require a commercial scale of reproduction before they are triggered, and commercial scale is considered on the basis of the volume and value of the article infringed - so just what a commercial quantity is will depend on the article copied. Producing 5 DVDs is not a commercial quantity, but producing 5000 DVDs, or distributing it on the internet to 500 people would be. In a fabric context, producing one meter of fabric would not be a commercial quantity but producing 200 meters would.

The newest form of criminal provision is a strict liability offence that provides a parking ticket/ speeding ticket approach to copyright enforcement, where police can issue a copyright infringement notice that involves a fine of sixty penalty units (around $600).

These relate to selling, letting, hiring, exhibiting, or offering for sale in public commercially infringing copyright items. With these offences the intention of the infringer is not relevant, and whether or not they made a profit is also irrelevant. So these offences are like the speeding ticket where the speeder’s intent is irrelevant. If an infringing item is located, the person is given an infringement notice.

These strict liability infringements are likely to be best used in market situations where commercial quantities of infringing items such as DVDs and CDs are being sold, and it will be interesting to see how these new provisions are implemented. The heart of the issue is that copyright has criminal provisions to combat commercial copying. So as always, be creative - don’t copy - as copying has become a more serious crime.