[LINK] On-the-spot copyright fines only for illegal traders?

[Adam Todd]

At 01:14 PM 16/11/2006, Brendan Scott wrote:
>Roger Clarke wrote:
> > Ruddock's Letter to the Editor of The Sydney Morning Herald
> > Thursday 16 November 2006
> > http://www.smh.com.au/text/articles/2006/11/15/1163266633263.html
> >
> > You reported that "copyright offences will now attract criminal
> > penalties" because of the Government's proposed copyright amendments
> > ("Soon your recordings will be a crime", November 14).
> >
> > This is misleading. Copyright offences already attract criminal
> > penalties. The Government is introducing a new penalty of "on-the-spot
> > fines" for existing offences, instead of court fines or jail terms, to
> > provide practical enforcement options. The fines are aimed at
> > market-stall operators selling pirated copyright material, not to
> > "trick" consumers.
> >
> > Philip Ruddock Attorney-General, Canberra
>
>Does anyone know how, assuming these provisions are introduced, they would 
>be implemented in practice?

My guess:

Police/Authorized officer sees materials sold at Flemington 
Markets.  Determines they are not licensed materials (and this will apply 
to T-Shirt artwork, books, software, music, DVD's, video tapes, cups, mugs 
... etc)

Now the informant to the officer might be a member of the public, a 
competitor, a copyright holder etc.  That is not relevant other than as a 
witness to the offence.   However the prosecution will be commenced by an 
informant being a police officer, and as such the "informant" becomes the 
witness and not liable to prosecution.  You can't prosecute a police 
officer as an informant unless they were negligent.

They then issue the stall holder with a fine, just like an RBT fine, 
speeding fine, neg driving fine etc.  It can also be sent in the mail long 
after the "offence".

You then have to either pay the fine, or go to court.

The fact that it's "criminal" is merely a distinction made by Parliament 
that it falls into a certain category of offences to be tried in court in a 
particular away.  There are different rules for criminal and non-criminal 
offences and within criminal there are different rules for offences of one 
type (generally based on monetary value of the offence) over other types.

>Surely it will be open to a street trader to challenge the issue of the fine.

Of course.  Complete the infringement notice and attend court with  plea of 
not guilty.

This is no different to, say for example, the case I'm in right now where 
I've been CRIMINALLY charged with failure to provide wage and employee 
records for Todd Corporation.  There are no records, there are no wages and 
there are no employees.  However, as my father (Bill Todd) told Workcover I 
had hundreds of employees and paid them heaps of money in wages, in our 
system, you are guilty until you prove yourself innocent.

The fact that it's about wage and emplo9yee records isn't a culpable 
pre-mediated criminal activity.  However parliament decided in all it's 
infinite wisdom based on the input you and I have impressed upon them in 
the majority, that a person who runs a company must be CRIMINAL if they 
don't have wage and employee records for non existent wages and non 
existent employees.

However in the case of copyright infringment, it's not a case of something 
not being as it is, it's the case that the person meticulously and with 
intent to deprive another of some form of reward or return, that it does in 
fact become criminal.

To be honest, I'd say a few people will be made examples off and then 
within 6 months it will be all forgotten.

Polci have enough to deal with, with my father telling them rubbish about 
me every day, than to contend with matters of copyright infringement which 
they can't prove without first going back to the licened owner.

To do that they might have to seize the materials being sold until such 
time as the validity of the materials can be proven.

That in it's own opens up all kinds of risk.  What if a copyright holder 
merely doesn't want their licenced product sold for a cheaper value so they 
report sellers who have obtained bulk product at discount rates.

The sellers are out of pocket millions in sales, probably interest on the 
money used to procure the assets and the police conduct their as always 
slow and laborious investigation.

6 months later it's found all the product was legitimate and was purchased 
through a wholesaler, and is part of the licenced asset base of the 
copyright holder.

The retailer doesn't get a sorry.  They get 12 months of sheer hell and no 
compensation.

This is why there has only been one criminal prosecution of copyright 
infringement in Australia - recently in NSW - a women who was a repeat 
offender.

Civil proceedings did nothing to stop her multimillion dollar exploitation, 
so as it was without doubt that there was an ongoing and repeat crime 
taking place, she was of course found guilty.

She had previously been prosecuted by civil action twice.  But hey, a 
$30,000 damages claim against the millions she made in sales was a small 
overhead in costs.

The public are getting smarter and more aware of the law and things.  I 
suspect if a "band" or record company started prosecuting everyone left 
right and centre for what is in effect individual promotion of the band or 
the materials published by the record label, they will do more damage to 
their sales and credibility than they will achieve in sales.

People will boycott a bully, especially in Australia.

The example about U2's concert being all over the Internet the next day is 
something I presume Bono and his team of entertains are delighted about.

The more their work is out there, the more people want to buy it, the more 
people talk about it, the more people demand it.

It's really simple.

>It would seem logical for them to also put in question both the fact of 
>infringement (which in turn requires proof of copyright ownership).  How 
>is the prosecution going to prove that the trader is exposing an 
>infringing copy for sale?  Will they subpoena the copyright owner's 
>records/(executives?) to work it out for themselves?

Same way they do it against me every time.  HOPE that the "defendant" will 
admit to the crimes on the day of the hearing,otherwise pray that the 
defendant hasn't got the ability to prove their innocents.

Noticed how the court lists now read "Defendant verses the Police" rather 
than "Police verse Defendant"

Subtle, but true.  You are required to prove your innocence today, not 
bring about reasonable doubt.