Following the Copyright Amendment Act 2006 (Cth), there are now three tiered offences for most offences – indictable, summary and strict liability offences relating to copyright piracy.
The most serious offences are indictable.
Default fault elements of intention and recklessness.
Maximum penalties of 5 years imprisonment and/or between 550 to 850 penalty units ($60,500 to $93,500) for natural persons.
The summary offences have a lower threshold, with most containing fault elements of intention (by default) and negligence.
Maximum penalties of 2 years imprisonment and/or 120 penalty units ($13,200).
Strict liability offences do not have a fault element.
Maximum penalty for a strict liability offence is 60 penalty units ($6,600) for a natural person.
Where a matter goes to court, courts can order that circumvention devices, infringing copies, and devices and equipment used to infringe, be destroyed, or handed over to relevant copyright owners, or otherwise dealt with.
There are criminal penalties and civil remedies for making, importing and commercially dealing in devices and services which circumvent technological copyright protection measures (such as decryption software).
Two key technological prevention measures were introduced in Copyright Amendment (Digital Agenda) Act 2000 (Cth):
provisions dealing with circumvention devices and services; and
provisions in relation to rghts management information.
These measures were modified by the Copyright Amendment Act 2006 (Cth), which implemented stronger measures as required by Australia’s obligations under the Australia-USA Free Trade Agreement 2004 .
“ access control technological prevention measure”;
“ circumvention device”;
“ controls access”; and
“ technological prevention measure”.
Sometimes a copyright owner can take court action against people who do these things, and sometimes this conduct is a criminal offence where action is taken on behalf of a State or Territory, or for the Commonwealth.
The sanctions implement Australia ’s obligations under the AUSFTA, which requires more extensive protection for TPMs than was provided in Australia before 1 January 2007.
The second technological prevention measure introduced in the Copyright Amendment (Digital Agenda) Act 2000 (Cth) which was extended and strengthened by the US Free Trade Agreement Implementation Act 2004 (Cth), makes it an offence for someone to intentionally remove or alter ‘electronic rights management information’ (ERMI).
ERMI is electronic information that is attached to or embodied in a work, such as a digital watermark.
It also includes numbers or codes which represent such information in an electronic format.
It acts as a footprint that helps copyright owners track the uses of their works online.
In some situations, copyright owners can take action against people who remove or alter ERMI from the copyright owner ’s copyright material without permission if this would enable or conceal a copyright infringement (s 116B).
In some cases, removing or altering ERMI is a criminal offence.
Copyright owners may also in some cases take action against people who distribute, import or communicate to the public copyright material from which ERMI has been removed or altered (s 116C).
Distributing, importing or communicating to the public this kind of material may also be a criminal offence.
Remedies and penalties for these actions and offences are mostly the same as for copyright infringement.
Until 1989, performers had no specific protection for their live performances under Australian law.
There was nothing that a performer could to to prevent others from recording and using their performances where they had no already been fixed in a material form.
A performer ’s consent is generally needed to film or record a performance, and to broadcast or otherwise communicate a performance.
Performers have extensive rights in relation to unauthorised films, recordings and broadcasts of their performances.
From 1 January 2005, the Copyright Act 1968 (Cth) has provided that performers co-own copyright in sound recordings of their performances - this provision may in some cases allow performers to exercise additional control over sound recordings of their performances.
Since 26 July 2007, the Copyright Act has given performers moral rights in relation to live performances and performances recorded in sound recordings.
In practice, performers ’ rights are often determined by industry agreements and other contracts, rather than by the provisions in the Copyright Act .
Performers have the right to grant or refuse consent for their performances to be recorded (audio or video) or communicated to the public (via radio or TV broadcast, or over the internet, for example).
Someone who does any of the following things without permission may infringe a performer’s rights:
makes an unauthorised recording;
makes a copy of an unauthorised recording, where the person knew or ought to have known that the recording was unauthorised;
uses an audio recording on a soundtrack where the performer did not consent to this use at the time the performance was recorded and the person knew this;
deals commercially with an unauthorised recording, if the person knew or ought to have known that the recording was unauthorised; or
makes an unauthorised communication of the performance to the public.
A use is u nauthorised if the performer has not consented to it.
The performer ’s consent is not legally required to be in writing.
There are civil remedies and criminal penalties for activities that are unauthorised.
The amendments made to the Copyright Act 1969 (Cth) under the US Free Trade Agreement Implementation Act 2004 (Cth) also gave performers part ownership of copyright in sound recordings of their live performances.
See 22(3A), 22(3B) and 22(3C).
These rights came into force on 1 January 2005 and gave performers the possibility of exercising some rights in relation to sound recordings on which they performed.
In the absence of an agreement to the contrary, the first owners of copyright in a sound recording of a live performance are the performer and the person who owns the recording medium (the master, for example).
In July 1988 the Copyright Law Review Committee recommended that moral rights not be introduced into Australia.
The CLRC was of the view that the existing laws sufficiently, though indirectly, protected moral rights.
The quandary that the Australian Government faced was that whilst there was internal opposition to moral rights, Australia was in fact obligated under treaty to implement those rights.
Moral rights were seen as a European invention – they belong in the civil law system.
The existence of moral rights in Article 6bis of the Berne Convention owes itself to the dominance of the Europeans in this treaty.
Could Australia have evaded its treaty obligations?
The view of the majority of the CLRC was not that Australia should evade its obligations.
The majority view was that existing laws provided effective protection of moral rights.
However, the fact that the protection in question was indirect would have left authors in a difficult position – after all a contract is an imperfect vehicle for guaranteeing the moral rights of a weaker party .
An author must be identified where attributable acts are done in respect of the work (s 193).
Creators have a right to be attributed (or credited) when their work is used in certain ways.
Creators of copyright in literary, dramatic, musical and artistic works can take action for any failure to attribute them that take place on or after 21 December 2000 (regardless of when the works were originally created).
The right of attribution applies to films made on or after 21 December 2000 and to literary, dramatic, musical and artistic works “as included in ” films made on or after this date.
This means that creators of such works completed before 21 December 2000 cannot take action for failure to attribute them.
The right of integrity is the right not to have your work subjected to derogatory treatment .(see ss 195AJ-195AK).
D erogatory treatment means doing anything in relation to the work which prejudices the creator’s honour or reputation.
This could include:
distorting, mutilating or materially altering the work in a way that prejudices the creator ’s honour or reputation; and
in the case of artistic works, destroying the work or exhibiting it in public in a way that prejudices the creator ’s honour or reputation.
Simply altering a work, or treating it in a way the creator is not happy with, will not necessarily infringe the creator ’s moral rights: there is also a requirement that the treatment of the work prejudices the creator ’s honour or reputation.
To date, there have been no cases in Australia to clarify what this might mean.
There are special exceptions to infringement of the right of integrity in relation to artistic works (including buildings and architectural drawings).
It is not an infringement of moral rights to:
destroy a moveable artistic work, if the creator, or the creator's representative, is given a reasonable opportunity to remove the work; or
change, relocate, demolish or destroy a building of which an artistic work forms part, or to which it is affixed, provided certain conditions (including the giving of notice and provision of access for the purpose of making a record and consultation) are met;
change, relocate, demolish or destroy a building, provided certain conditions (including the giving of notice and provision of access for the purpose of making a record and consultation) are met; or
remove or relocate site-specific artworks, provided certain conditions (including the giving of notice and provision of access for the purpose of making a record and consultation) are met.
It is not an infringement of moral rights to do anything in good faith to restore or preserve a work.
John Bulun Bulun, an Aboriginal artist, painted an artistic work in 1978, with permission of senior members of the Ganalbingu people (in Arnhem Land), in accordance with customary law. The respondent imported and sold fabric that infringed the copyright in the artistic work. Bulun Bulun sued as copyright owner and George Milpurrurru sued as a representative of the Ganalbingu people. R & T Textiles admitted infringement with respect to Bulun Bulun, but did not admit that the Ganalbingu people were the equitable owners of the copyright.
Rejected a claim of “community ownership”.
There was a fiduciary relationship. The Ganalbingu people permitted Bulun Bulun to create the artistic work that embodied part of their ritual knowledge derived from their ancestors, but Bulun Bulun could not exploit the work in a manner contrary to customary law, and was bound to take appropriate action against third parties to restrain and remedy any infringement of copyright.
This did not grant equitable interest in copyright, but if Bulun Bulun breached the fiduciary duty, an action in personam or a constructive trust could be imposed.
However, Bulun Bulun had not breached the obligations of his fiduciary duty in this case.
2.11 Copyright protection for indigenous art and culture