Quick link: my supplementary submission to the Senate Legal and Constitutional Affairs Committee Inquiry on the Copyright Amendment Bill is now available online here. In the submission I argue two things:

  1. The provisions could be amended so that they did not impact on ordinary activities by individuals and businesses, while still capturing the activities that are supposed to be targeted and that cause real concern for organisations like AFACT;
  2. Groups other than copyright owner representatives must be consulted in the drafting of guidelines on the enforcement of the new criminal laws. Possible groups include representatives of the cultural and educational institutions, and (on behalf of ‘society generally’) the Law Council of Australia and perhaps the Business Council of Australia.

My basic point is this: these laws are unprecedented in the world and in Australia. We do not need to start with an all-encompassing strict liability and infringement notice scheme. What we SHOULD do is start with narrower provisions, and if they (provably) don’t work, then we broaden them so that they do. Adopting an incremental – rather than an ‘all in’ – approach would importantly reduce the costs of these new laws for ordinary people and Australian SMEs.

It may be worth pointing people who haven’t yet found it to this story on the Australian. The Australian describes a leaked, draft report coming out of a study that the Australian Institute for Criminology is doing on IP enforcement in Australia. To quote the story:

The report, intended as a confidential government briefing, casts doubt on the methodology of some industry piracy studies.

It says the manager of the recording industry’s anti-piracy arm, Music Industry Piracy Investigations, did not know how piracy estimates were calculated, as that work was done by the International Federation of Phonographic Industries in London.

Copyright owners often use street-value estimates to calculate losses, but this assumes that every person who bought pirated goods would otherwise have paid for a legitimate item, the report notes.


Many copyright holders claimed links between piracy and organised crime, but AIC researcher had found nothing to support that view.

“Either there is no evidence of any links between piracy and organised crime or it is simply beyond the capacity of rights holders to identify these links,” he wrote, adding that he was concerned about the way piracy figures were being used.

“It is inappropriate for courts and policy makers to accept at face value currently unsubstantiated statistics.

“Either these statistics must be withdrawn or the purveyors of these statistics must supply valid and transparent substantiation.”

Now, let me note three things:

  1. the report is a draft, it is leaked, and is still being reviewed
  2. I do not underestimate the importance of the issue of piracy to the film industry and others – physical piracy at markets in Australia is substantial. It is very, very easy to find a cheap pirated version of a film, game or software here.
  3. I have no problem at all with enforcement against such actors who contribute nothing at all to culture or entertainment in Australia.

But I think that this report DOES highlight something important: it is not appropriate to just jump in, boots and all, with broad, overreaching criminal laws.