Here are some first thoughts on the Amendments the government has proposed to its own Copyright Amendment Bill.

Criminal provisions

The government is proposing to remove a number of the strict liability offences: namely:

  1. s132AL(9) (possessing a device to be used for making infringing copies) (the “I own a PC and a video recorder and I’m a criminal” offence)
  2. s132AN(5) (causing a literary, dramatic or musical work to be performed in public at a place of public entertainment) (the “we sang popular songs too loud at the restaurant” offence)
  3. s248PA(5) (making a direct recording of a performance without consent of the performer) (the “mobile recordings at the U2 concert” offence)
  4. s248PE(6) and s248QB(6) (possessing equipment to make or copy an unauthorised recording) (the other “I own a mobile phone/mp3 recorder/PC” offences)

And on the criminal provisions, that’s it folks. Yes, despite the rising chorus of concern about the criminal provisions; despite the complete absence of any serious consultation process prior to these laws being released, they’ve done only a token amount to assuage people’s concerns here. They’ve removed the provisions that people were carrying on about the most – the ones that most directly affected ordinary consumers.

But there are a number of these provisions to catch the 14-year-olds that they’ve not dealt with. Most obviously, the “distributing material online to an extent that prejudices a copyright owner” is still a strict liability offence. That’s the provision that catches the 14-year-old lip-synching to a song. This provision, alone, makes our criminal law significantly harsher than US law, since in the US, you have to at least distribute $1,000 retail value worth of infringing copies before you get pinged under criminal law.

Notably, too, they’ve been a little inconsistent. They haven’t excluded from strict liability causing a film to be seen, or a sound recording, to be heard in public at a place of public entertainment. Playing your radio too loud, or showing the kiddies a film on a wet day at school camp is still a criminal offence, and still something for which you could get pinged with an Infringement Notice (apparently, playing your radio too loud is more evil than singing songs too loud).

And, of course, they still haven’t told us what they intend to do with multiple offences. What happens when I copy and sell a CD, and that constitutes 33 offences? Can I be pinged with 33 Infringement Notices? Are they ever going to tell us what they are planning to do about this kind of potential overkill?

Copyright Exceptions: The private use (timeshifting, formatshifting, iPod) exceptions

Here, they’ve done two key things. First, they’ve”clarified” (ha ha ha) that “private and domestic use” “means private and domestic use on or off domestic premises”. Great. I suppose it prevents someone arguing you can only use your iPod at home. But it does sound like such a nonsense, on the face of it. So what does domestic mean again? Good luck working it out…

To read on, head to Weatherall’s Law.

Peter Fray

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