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Regular readers may recall that a little while ago I blogged about the Exposure Draft which contained the new Enforcement regime for copyright law. You can find that post here. It was pretty brief. But it was quite critical of one key thing, and that is the introduction of offences of strict liability.

Offences of strict liability, by the way, are offences which do not require a mental element, or mens rea. That is, you don’t have to intend to do wrong, or be reckless about whether you are doing wrong. You just have to do the act.

I should note, that that offences of strict liability are not the same as offences of absolute liability. In Commonwealth Criminal law, offences of strict liability do have a defence mistake of fact. That is, if you (a) considered whether or not facts existed, and (b) are under a mistaken but reasonable belief about those facts, and (c) if the facts existed, there would be no offence, then you are ok. Note, you must turn your mind to the issue, for the defence to apply.

Anyway, I’ve had some feedback on that particular post. Yesterday, I was having a bit of an argument with someone about whether the introduction of strict liability was really that big a deal. Today, I was speaking to someone else again. Combined, my interlocutors raised several points:

1. We have strict liability offences for other property offences. what’s different about copyright?
2. The offences apply to commercial conduct, not the kinds of things that ordinary people do, and it is right to treat commercial operators who are infringing copyright on a commercial scale as criminally liable.
3. Strict liability may be needed because you have people – say, the lowest link in the copyright infringement foodchain, like the guy at the market selling the infringing stuff – who may not know what they are doing is infringing, who never turn their minds to the issue at all. Or perhaps we have the guy with the backyard business in burning CDs. He’s not thought about copyright either. But what he is doing is wrong, and we want a way to send that message without being completely draconian about it and sending the guy to jail. On this reasoning, what we want, perhaps, is a system of graded penalties – in particular, low-level on the spot fine type penalties – that can be used against this kind of individual, without the whole rigmarole of the court process, but which can be used to send a clear, direct, immediate message that this is wrong, criminal, infringement.
4. It is not feasible, or desirable, to have just one level of offence and one level of penalty. Far better to have a graded system of strict, summary, and indictable offences – with only the latter two carrying the risk of jail time.
5. What are the situations where, under these laws, they might have unintended reach or consequences? Can you identify situations where the laws would reach, but the resulting penalty would be inappropriate?

These are valid points, and valid questions. They require some thought, and some words, to answer them. I could do it directly, via email, to my interlocutors. But I also know, from speaking to various other people on the phone, that the criminal provisions are one area that people have not had the time, or the understanding, to consider in depth. 87 pages of provisions, which are repetitive, and written in an unfamiliar style, are hard to analyse in a very limited period of time. So I’ve decided to blog my issues, and questions, in the hope of offering people some thoughts, some issues, and starting, if appropriate, a conversation if my fears are considered unfounded. I attempt to do so over the fold. But I note this qualification: if any of the following is incorrect, I apologise, and offer to correct it – just email me.

1. We have strict liability offences for other property offences. what’s different about copyright?

We do indeed have offences of strict liability in relation to offences regarding physical/tangible property. We even have ‘strict civil liability’ (in the sense that you can infringe copyright even though you don’t know you are. You will, in those circumstances, be exempt from paying damages).

However, the imposition of strict criminal liability is unprecedented, so far as I am aware, at least in common law countries. One US professor I emailed about it – someone with considerable history and knowledge of the copyright system over there – confessed himself ‘shocked’ by the idea that you would have strict liability.

Why is that? It is because copyright is different from other property. It really is, despite what some people say. It is intangible. It is artificially constructed by law. You can’t see the boundaries of copyright to walk over them. You don’t get some kind of signpost to the fact that you are infringing in many circumstances. Hop over a fence and you know that you are trespassing. Take an apple from someone and you know that you are depriving them of the apple. Instinctively, morally, we know that taking – or interfering with – the tangible property of another is a wrong.

It’s just not the same with copyright. We don’t necessarily know when we overstep the boundaries of this law. Do people really know that performing a song in public – or playing a legitimately purchased record at their office Christmas party is an infringement? That making a recording of their colleague singing in the shower – or in a public park – then putting it online could be an infringement of their colleague’s performers’ rights? The borders aren’t tangible, nor are they are natural – they are artificial, and the law isn’t easy to understand. As a blogger on copyright, I cannot tell you how often I am asked questions – basic questions – about copyright. The level of misunderstanding is deep, and pervasive.

Now one obvious counter to this is – well, that’s fine. All that means is that we need to educate people better about what copyright entails. That’s a matter of education, in other words – not a justification for treating copyright differently from other property rights.

But you know what? As a response, that really doesn’t cut it. Firstly, because under the stewardship of the present government, copyright law has become immensely more complicated. It is simply not possible to explain copyright in simple terms. Ordinary people shouldn’t have to learn these complicated rules in order to avoid criminal liability.

And second, why should the order be criminalise first, educate later? Why try to ‘educate’ people by holding over them the Sword of Damocles of a criminal penalty? Criminal law earns disrespect when it contravenes people’s moral sense. Frankly, at the moment, people have quite a lot of disrespect for the copyright law. People are likely to have even more disrespect if told that you can be a criminal for contravening these artificial and intangible rights where you didn’t know what you were doing was wrong. I think with copyright that, at least where we are talking about the general public (and not the nasty evil counterfeiters), we need to tread a little softly. Copyright depends on goodwill for its enforcement, because it is so easy to transgress. We need to handle that goodwill with respect, and treat ordinary people with respect, in the way we draft the laws. Threatening them with criminal liability is not a good way to earn goodwill.

And it’s a shame, because I think that over time a lot of people have come to realise that selling infringing CDs at the market really is a crime. Education in that respect is working. I think a lot of people think mass file-sharing is wrong. But when the law fails to differentiate between these and far less obviously morally wrong scenarios, we are in trouble. As I outline below, I think the law fails to differentiate.

And it’s interesting, too, because so far we have differentiated between morally culpable and other conduct – and we have done that in part by having a requirement of mens rea or intention. The ignorant have been safe. No longer. That’s why I think there is a problem.

2. The offences apply to commercial conduct, not the kinds of things that ordinary people do, and it is right to treat commercial operators who are infringing copyright on a commercial scale as criminally liable

The second objection I received was this – that the criminal offences apply to commercial conduct only, not things ordinary people do. There are at least two answers to this.

The first is that not all activities that fall within the broad umbrella of ‘commercial’ are necessarily activities which you might think were criminal/morally culpable. Remember – individuals sometimes sell or advertise stuff. The example I gave in my previous post was the example of selling your iPod, where some music still happens to be on it. That involves, I think, selling an article (which includes electronic copy) which is an infringing copy (according to the new format-shifting exception).

Second, it’s actually not true. There are a series of offences under this law which apply in the absence of a commercial motivation. To give you a list (noting those where strict liability applies):

1. engaging in conduct which results in one or more infringements on a commercial scale which have a substantial prejudicial impact on the copyright owner (s132AC)
2. distributing an article which is an infringing copy to the extent that the distribution affects prejudicially the copyright owner (s132AI) (strict liability applies)
3. making or possessing a device, intending it to be used for making an infringing copy of a copyright work (s132AL) (strict liability applies, so if the device is to be used for making infringing copies, you can be liable).
4. causing a work to be performed in public, or a sound recording or film to be seen or heard in public, at a place of public entertainment (ss132AN and 132AO) (strict liability applies. It does not say on the face of the legislation that you have to own or run the place of public entertainment)
5. making a recording – directly or indirectly – of a performance without the permission of the performer (ss248PA and 248PB) (strict liability applies. note that the performer does not need to be professional);
6. communicating an authorised recording of a performance to the public (s248PC) (strict liability applies)
7. causing an unauthorised recording of a performance to be heard in public (s248PD) (strict liability applies)
8. possessing recording equipment intending it to be used to make an unauthorised recording of a performance (s248PE) (strict liability applies – so possessing equipment to be used for that purpose is an offence)
9. copying an unauthorised recording of a performance (s248PF) (strict liability applies)
10. distributing an unauthorised recording of a performance, where the distribution will prejudicially affect the financial interests of the performer (s248PJ) (strict liability applies)

We think that the criminal offences apply only to commercial conduct – guys in markets – but we are wrong if we think so.

Third, and perhaps even more troubling, is the problem of the device provisions and other ‘indirect’ provisions. One thing the government often says it wants to do is to encourage innovative small business. However – in an environment when many private copies remain infringements – when it becomes criminal to make or possess a device for making infringing copies – or an indictable offence to engage in conduct that results in substantial infringements – you create a major deterrence to businesses interested in providing innovative software or devices that make use of content in interesting ways. remember the iPod. Is it not a device for making infringing copies under current law? And even if we write a law to fit the iPod and allow it, what about the next such device?

3. Strict liability may be needed because you have people – say, the lowest link in the copyright infringement foodchain, like the guy at the market selling the infringing stuff – who may not know what they are doing is infringing, who never turn their minds to the issue at all.
4. It is not feasible, or desirable, to have just one level of offence and one level of penalty. Far better to have a graded system of strict, summary, and indictable offences – with only the latter two carrying the risk of jail time.

The third and fourth issues raised by my interlocutors were that strict liability may be necessary to create small-time offences – little infringement notices – to people who have never really turned their mind to the issue of infringement. Coupled with this is the fact that it is better to have a graded set of penalties – leaving room for escalation and encouraging police to get more enthusiastic about enforcement.

These arguments are harder to answer than the previous two. I do think there is something to the fact that you want police to have a range of tools at their disposal, particularly to send a clear, unequivocal message to the lowest microbes in the foodchain where there is a genuine web, or chain, of copyright infringement. I get that, I really do.

I do wonder whether such people are likely to respond to infringement notices. To the extent that they know they are doing wrong, it might seem a little weak – another mere cost of doing business. To those who are not aware, the fine is not insignificant – over $1,000. Per offence. Which at least in theory means per infringement. That can escalate pretty quickly. If you sell, say, 10 burned CDs, each with 8 tracks, you are already talking about $105,600 as the potential on the spot fine – and that’s just for the sound recordings, let alone the infringements of the musical work (assuming here that there is no numerical limit on the on the spot fine – this could be wrong; we don’t have the regulations yet).

I also wonder whether in fact the whole strict liability-on the spot fine system is the best answer to this. the purpose, one assumes, is increasing the level of deterrence by making a penalty more likely. You could do that by increasing the likelihood of these small fines – but I wonder whether a better solution isn’t more enforcement of the offences with a mental element. And I am thinking, here, not about the state devoting more resources, but about more use of private criminal prosecutions, which have been used in countries like the UK. At least that way we wouldn’t be sacrificing the general principle – which I argued for above – that criminal liability should have a condition of awareness, because copyright is different.

I also question – already detailed above – whether it is a good idea to put criminalisation before education and public support. Move too far ahead – particularly in the current climate, and particularly if ‘ordinary acts’ are captured – and you risk miring copyright further in disrespect by ordinary people. I don’t care if counterfeiters don’t respect the law – or at least, I agree with enforcement against them. What I care about is when copyright gets a bad name for itself by criminalising ordinary acts.

6. What are the situations where, under these laws, they might have unintended reach or consequences? Can you identify situations where the laws would reach, but the resulting penalty would be inappropriate?

The final question I was asked was this: can you think of situations, captured by the current draft provisions, which are truly problematic? What, in other words, is the real potential and problematic effect – perhaps the unintended consequences – of these laws?

This, too, is hard to answer because it asks me to prognosticate; to imagine situations. Here’s a list of what I’ve come up with so far. Email me if you are wondering about more:

1. Section 132AL makes it an offence of strict liability to make or possess a device which is to be used for copying a work or other subject matter, where the copy will be an infringing copy, and copyright subsists in the work or other subject matter at the time of the possession of the device.
   The thing to note about this provision is that it does not require, on its face, that the device have the sole or dominant purpose of making infringing copies. Isn’t a PC a device to be used for making copies? At the moment, isn’t an iPod? And who has to make the copies – could parents be liable because they know or suspect their child may infringe copyright on the family computer?
2. s 132AH makes it an offence – of strict liability – to import (for sale) infringing copies.
   My issue here is that infringing copies includes legitimate copies made overseas but imported contrary to bans on parallel importation which still apply to some copyright works, like films. Making this an offence of strict liability has the potential to catch people who are not aware of the finer points of parallel importation rules, right?
3. Section 132AI makes it an offence to distribute infringing articles to an extent that affects prejudicially the owner of copyright. It’s an offence of strict liability too.
   This covers file-sharing (because ‘articles’ includes electronic copies) potentially. But it’s not just that. It would cover those situations where you put a file on your website, unawares.
4. The whole section for the unauthorised recording of performances bothers me. Many are offences of strict liability, requiring no commercial motive.
   My issue here is that it makes all those teenager fans who go to the Big Day Out with their mp3 recorders criminals. Even before they record, since they possess equipment intending to make an unauthorised recording. And remember – offences of strict liability. Actually, facetiously, I’m wondering whether it makes parents at the school play criminals too…
5. Last post about this, I posited the scenario of playing music at your wedding. I was taken to task about this. I’m not sure about the effect of the provision. Under s 132AO, it is an offence to cause a sound recording or film to be seen/heard at a place of public entertainment, where causing that hearing/seeing infringes copyright. This is a strict liability offence. The question – and I don’t know the answer – is do you have to be in control of the place of public entertainment? In other words, would this apply to the ordinary individual who puts speakers on their iPod to play a song for their friends while they are present at an amusement park, pub, or public venue?
6. Under s 132AC, it is an offence (indictable or summary – there is no strict liability here) if a person intentionally engages in conduct, which results in one or more infringements of copyright, the infringements have a substantial prejudicial impact on the copyright owner, and the infringements occur on a commercial scale.
   I’m not sure of the scope of this. Does it apply:
   – to a person who put copyright-infringing material on their (high traffic) website?
   – to a person who put a link to copyright-infringing material on their (high traffic) website?
   – to a person who sold or provided a computer program which could be used to infringe copyright? or
   – to a person who sold or provided a computer program which could be used, if a well known and readily available patch was inserted, to infringe copyright (with insertion of that patch being a highly foreseeable consequence)?
   I just don’t know.

More generally, I have a concern about these provisions. And that is the multiplier effect. The fact is, that these offences apply to each infringement. The problem is that if you sell, say, 10 burned CDs, each with 8 tracks, you are already talking about half a million as the maximum fine (or $105,600 as the on the spot fine) – and that’s just for the sound recordings, let alone the infringements of the musical work). back when the Copycats report was done by the House of Reps Legal and Constitutional Affairs Committee, the Committee recommended clarifying the law, to ensure that it was clear that each infringement could be a separate offence. At that time, strict liability and on the spot fines were not being posited. At the time, this was one of the ways the Committee recommended to make enforcement, and deterrence real.

Now we have another multiplier effect. And that is that in the usual ‘law and order auction’, we have new changes – strict liability, on the spot fines – imposed on an old set of changes – individual offences – resulting in a truly horrific potential set of penalties, way out of proportion compared to other fines for other property offences. And that is just wrong. I would like to see some serious limits placed on these fines, and the on-the-spot fines, in the form of regulations or rules, to ensure that threats of suicide-inducing fines cannot be sent or orally made to people.

One final point. Some of the provisions have defences for public institutions like libraries, archives, galleries, cultural institutions, educational institutions acting lawfully. Why aren’t these defences general. I’d like you to imagine the following situation.

You run a historical museum. You have an amazing collection of old love letters from the Front in your collection. You run an exhibition of said letters. It is wildly successful. People keep asking for copies. You want to create a brochure. You cannot possibly trace the copyright owners. Hence, you know you are infringing copyright – or at least, that there is a substantial risk that you are. You decide to go ahead. Let’s say there are 9 photos of letters in the catalogue. Let’s say you sell the catalogue. What is your potential criminal liability?

I’ve thought about it. I remain deeply opposed to strict liability in copyright, because I remain of the view that copyright is different. I’ve also tried to show that the effect of these rules is perhaps not what people think. I stand ready to be corrected on anything I’ve written, because I’m not a real expert here.