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I feel like I’ve been going on forever about Australia’s new criminal copyright laws (that is, Schedule 1 of the Copyright Amendment Bill, due to be reintroduced into Parliament this week). Some readers are no doubt getting bored by the whole thing.

But I would like to share with you – at least, those of you who are interested – an exchange I’ve been having recently via email with a colleague of mine, Jeremy Gans. Gans is a bona fide criminal law expert, unlike me. He took me to task (a little!):

I think the three tiers of responsibility are being referred to imprecisely. (Well, more precisely, you’re picking up criminal lawyers’ sloppy language, which will inevitably mislead anyone other than criminal lawyers. And many of those.)

So I’ve been nutting it out a bit with Jeremy’s assistance. I thought quite a few people might have some of the same questions I did. So I’ll set out our debate at some length over the fold.

The ‘top tier’ (indictable offences; 5 yrs jail/fine of $60,500 ($302,500 for companies)

As Jeremy explains,

The ‘top tier’ has the default element under the Criminal Code. That’s not intent or knowledge [except in a subset of offences] but ‘recklessness.’ Recklessness means being aware of a risk, not certainty or desire. So, you can still be liable even if you don’t want to breach the law or you don’t know for sure that you are. Also, no matter what the fault element, the issue is knowledge of the underlying facts, not their legal characterisation. you can be guilty even if you know nothing about copyright law, let alone the nuances of the new legislation. Ignorance of statute law – even poorly drafted statute law – is no excuse.

Let’s see what that means. Take proposed section 132AD. It says that you commit an indictable offence if :

1. you make an article, with the intention of selling or hiring it, or obtaining a commercial advantage;
2. the article is an infringing copy of a work or other subject matter; and
3. copyright subsists in the work or other subject matter when the article is made.

In terms of the ‘mental element’ of the offence, and applying the standard fault elements under the Commonwealth Crimina Code, that means:

1. you must intend the act of making the article (you press ‘copy’ on your computer).
2. you must intend to sell or hire the copy or obtain a commercial advantage.
3. The thing which makes a copy ‘infringing’ is that it is made without the authorisation of the copyright owner or, in the case of a parallel imported copy (authorised copy made overseas not authorised to be sold in Oz), that it would be an infringement if made locally. Being a ‘result’, the default fault element in the Criminal Code is recklessness. So, you must be reckless (aware of substantial risk; take risk anyway) that the copy is made without the authorisation of the copyright owner.
4. You must be aware of a substantial risk of the facts that mean ‘copyright subsists’. In other words, knowledge (of the risk) that facts exist that cause copyright to subsist – someone composed the music, it may well have happened within the last 50 years or whatever, it may well have happened in the US (or any country that turns out to have a copyright law we recongise), they may well not have declared their work free for anyone who gets it, who ever did it may well not have got the nod from the owner – will suffice. You don’t have to know anything about copyright – or even that there is such a thing as copyright – or anything specific about the particular sort of copyright you’re looking at.

The ‘middle tier’ – recklessness (2 yrs jail/$13,200 fine (or $66,000 for company)

Again, let’s see Jeremy’s explanation of negligence:

The ‘middle tier’ has the fault element of negligence. This could be really easily misunderstood, as it’s a much more stringent standard than negligence under civil law. The standard comes from manslaughter: you must fall GROSSLY short of the ‘standard of care’. (I think this fault element is poorly suited to a commercial crime. What standard of care? And can an infringement ever be gross?

This Jeremy and I have been debating. Just what is ‘negligence’ here? AGs certainly have not explained what they think this means in any documentation I’ve seen. Assuming of course they’ve even thought about it. Here’s what I wrote back to Jeremy:

Like you, I have absolutely NO idea what the ‘standard of care’ for avoiding copyright infringement might be, let alone how one would fall ‘grossly’ short. I suppose there might be some contexts where it makes sense to talk about a standard of care. I’m thinking here, for example, of a person who is establishing a social networking website. There might be certain standard technologies one would use to ensure that one is not allowing upload of copyright infringing material. Or perhaps if you are establishing a video rental business. Again, there might be certain standard steps to avoid receiving pirate, as opposed to authorised, copies of material. Imagine the video store which to save money decides to find an overseas supplier of videos – which provides a paper handwritten letter that says the copies are authorised? Grossly short of the standard one would expect perhaps?

Jeremy responded:

Your negligence example sounds plausible. But the truth is that no-one knows how criminal negligence works. It’s only ever been applied to crimes of violence, notably manslaughter (where the alternative ground of unlawful and dangerous act is much more common.) Main examples of negligence: trying to set yourself alight to prove to your girlfirend that you love her, but accidentally setting her alight instead; trying to get some trespassing boys off your property by chasing them into thick vegetation with your front end loader, running one of them over. Maybe you can draw some copyright analogies?

You know what? I’m not even going to try to find a copyright analogy for ‘accidentally setting your girlfriend alight while trying to light yourself to prove your love.’ I don’t want to even think about what a copyright analogy to that might be. Ditto for the front end loader. Ick.

What does this show? If neither copyright expert Kimberlee, nor criminal law expert Jeremy can work out what negligence would mean in this context, the obvious conclusions are:

1. This is really hard;
2. This has not been thought through: it looks like we’ve just had the wholesale application to copyright law of criminal law drafting models from elsewhere. And they don’t fit. But of course no one [in government] wants to hear that and no one [in government] wants to fix it because it’s critically important that these laws go through now… NOT. As I’ve said repeatedly, there is no hurry on this Schedule – the only one in the Act on which the government didn’t see fit to do consultation (and no, talking to IP owners is NOT consultation. It’s not consultation when you talk to only one side of the equation. That’s called talking to lobbyists).
3. We need some explanation from the people who have written these laws. Can they give us an example or two perhaps? Tell us what they were thinking about when they drafted laws applying ‘neglience’ here?

The ‘bottom tier’ – the strict liability offence ($6,600 fine/$13,200 for companies)

Once again, over to Jeremy:

The ‘bottom tier’, ‘strict liability’, doesn’t technically have a ‘fault element’ but it has the next best thing: the defence of honest and reasonable mistake of fact. That defence means that if you thought things were otherwise than they turned out to be (and your thinking was reasonable) then you’re not guilty. (The fact that it’s a ‘defence’ just means that you have to raise it. But after that, it’s up to the prosecution to disprove it beyond reasonable doubt.) ‘Strict liability’ shouldn’t be confused with ‘absolute liability’, where what you think doesn’t matter at all (but other defences might still be available, e.g. involuntariness, necessity.)’

In terms of section 132AD again, this means the person charged:

1. makes an article in preparation for, or in the course of, selling, letting it for hire, or obtaining a commercial advantage or profit
2. the article is an infringing copy of a work or other subject matter; and
3. copyright subsists.

The difference between this and the indictable (top tier) offence is that you no longer have to know that the article was made without the authorisation of the copyright owner. As Jeremy points out, that means there’s actually not a huge difference between bottom and top tier.

What of the defence of ‘honest and reasonable mistake of fact’? Well, I raised two questions with Jeremy:

1. You have to turn your mind to it to make out the defence. Pure ignorance is NOT a defence. Surely it’s not that unusual that people don’t even think about copyright. Or businesses don’t have strong internal systems in place to prevent people infringing.
2. All the strict liability offence requires is that you are liable where it wasn’t made with authorisation of the copyright owner. Most acquisitions of copyright material these days are in fact via license. Licenses to use copyright material, particularly software, often come with lots of conditions (number of computers, number of simultaneous users, number of copies that can be made, how upgraded etc). Once you make copies of the material beyond those which are licensed, you are infringing. Let’s say that copying is criminal. Can you plead ‘honest and reasonable mistake of fact’ if you don’t actually check the terms of the license?

Jeremy tells me that I am right about the ‘pure ignorance’ scenario. Yes, you must turn your mind to copyright, or you have no defence. Although, as he points out,

There is an exception to this in the Cth Criminal Code in 9.2(2): “A person may be regarded as having considered whether or not facts existed if:(a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and (b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.” So, the hapless employee [making an extra copy of licensed software] would be OK so long as they had done their research once – i.e. checked the licence and saw that what they were doing was fine and reasonably believed that this occasion was no different.

But, as Jeremy points out, the bigger problem (for potential defendants) is that the concept of ‘reasonableness’ is really narrow:

Just about every case that considers the test takes a tough line. Relied on a dodgy speedo without getting it serviced routinely? Guilty. Relied on the fact that the dude who loaded your truck got the weight right NEARLY every time? Guilty. Relied on your employee without providing world-class training? Guilty. Maybe if the person who gave you the dodgy CD was a copyright lecturer?

Ouch. Sounds like ‘reading the license once (and not understanding it because it’s written in 6 point font in legalese) might not be sufficient defence.

So where is the real problem with the criminal copyright laws? It’s in breadth, prosecutorial discretion and the potential for selective enforcement

I hope some of the above explanation helps some people understand what’s going on here. But given this explanation, you might be forgiven for thinking there really was ‘no big deal’ here.

Well, as I’ve said repeatedly, the real concern is that the criminal copyright laws were already broad (already too broad, in my view) and strict liability offences – and infringement notices – makes it more likely they will be enforced. As I said to Jeremy:

The most significant problem is the increased potential for enforcement – SELECTIVE enforcement too because the laws are so broad – that comes when you have infringement notices attached to all these offences. I get what they’re trying to do, and what they’re trying to capture. But they’ve written these laws WAY broader than they needed to in order to achieve their aims.

Jeremy doesn’t disagree – but points out this problem is not exclusive to copyright law (of course!):

But my point is that your point loses some of its significance because the law of criminal responsibility is already amazingly broad, even for ‘full’ liability offences. Lots of car drivers who kill someone are manslaughterers; many are murderers. More importantly, as you note, the law on complicity is stunningly vast. It’s only prosecutorial discretion (and maybe police ignorance) that stop car passengers from being prosecuted for nearly everything the driver does (e.g. speeding, illegal parking, drink-driving) or housemates for being prosecuted for dodgy things done by a household member (shopping on an invalid tram-ticket, shoplifting tonight’s groceries.) You’re guilty if you know of even the possibility that your mates will break the law.

The law on criminal responsibility really only protects extreme people (drunks, [drugged out], in a rage, in despair) or people in extreme circumstances (fluke accidents, difficult choices, friends of extreme people.) Ordinary people doing ordinary things – surely the norm for all these breaches of copyright law – escape only through prosecutorial discretion or, failing that, sentencing discretion or, failing that, highly-paid lawyers who can find technicalities (as there’ll surely be many in this new legislation or in the Commonwealth’s untested criminal code
itself.)

So there you have it folks. From someone far more knowledgeable than me about the new criminal provisions. I hope you’ve found it as instructive as I did. And what do we learn from this boys and girls? That the problems aren’t matters of my imagination, they are real. That these laws probably haven’t been thought through in a lot of detail. And that the guidelines on how these laws will be enforced in practice – which I believe will be drafted next year – are going to be quite important, me thinks.