Imagine this: girl having great time at live concert uses fabulous slimline phone with mp3 recorder and camera to capture the moment. She sends it to her home computer, and later plays it for the office Christmas party.

According to the Australian government she is a criminal. Under laws now being debated in the Senate and due to pass in coming weeks, she is:

  • Making a direct recording of a performance without the permission of the performer(s): criminal offence, $6,600 fine;
  • Possessing equipment to copy an unauthorised recording: criminal offence, $6,600 fine;
  • Making a copy of an unauthorised recording: criminal offence, $6,600 fine;
  • Paying an unauthorised recording publicly: criminal offence, $6,600 fine.

    Total fines: $26,400.

And she’s not alone. These laws are so broad that they also catch:

  • The company, selling a research report, whose employee cut-and-pasted a photograph from online to make the cover look pretty;
  • You, if you own a device that will be used for making infringing copies. Make sure you get rid of that video-recorder you’re using to tape TV shows for your mother-in-law.

The proposed bill also creates on-the-spot fines — infringe copyright and you could be up for a $1,320 fine, on the spot. While we’ve always had criminal offences in the Copyright Act, these laws only applied to people who act intentionally or recklessly. The requirement of intent is one of the most fundamental protections of criminal law. The Copyright Amendment Bill removes that: you can now be a copyright criminal without knowledge or intention.

The government will tell you that the provisions will only be enforced against “pirates” – the guys importing pirate DVDs and the dudes at the market selling pirated software. If so, why aren’t these offences restricted to activities carried out for profit, on a commercial scale?

The government will also tell you that we can’t draft these provisions more narrowly and people should have trust in how they will be enforced. But the reality seems to be that they want these laws through quickly and haven’t publicly consulted.

So what is behind these new laws — and why the rush? Well, parts of the bill are there because we need them to comply with the US FTA – that’s Schedule 12, the ‘anti-hacking’ law about digital rights management. But the government is using this urgency to push through a lot of other stuff, including the criminal laws.

What I’d like to know is how the government plans to explain these laws to parents and families who will suddenly become copyright criminals, and to small businesses who will have to fund copyright training out of already stretched budgets.

For more articles about the state of Intellectual Property law in Australia, head to Weatherall’s blog: IP in the land of Oz (and more).

Peter Fray

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