Re: [LINK] We’re all copyright criminals now

[Adam Todd]

At 11:02 PM 20/11/2006, Kim Holburn wrote:
>I know we've talked about this on link but reading it brought up some
>questions in my mind (see bottom posting below)
>
>http://www.crikey.com.au/Media/20061108-Were-all-copyright-criminals- now.html
>
>>We're all copyright criminals now
>>Date: Wednesday, 8 November 2006
>>Intellectual property academic Kim Weatherall writes:
>>
>>Imagine this: girl having great time at live concert uses fabulous
>>slimline phone with mp3 recorder and camera to capture the moment.
>>She sends it to her home computer, and later plays it for the
>>office Christmas party.
>>
>>According to the Australian government she is a criminal. Under
>>laws now being debated in the Senate and due to pass in coming
>>weeks, she is:

Actually this is NOT what the law says.

It says if you have the equipment with the INTENT to infringe 
copyright.  The Girl didn't intend to infringe copyright.  She's be quite 
well protected by the following points:

1.  She bought the tickets to the show and did not intend infringing copyright
2.  She's probably bought the music and music DVD
3.  She isn't publicly exhibiting it with the intent of taking away
     the profit of the copyright holder.

The band would probably be grateful (and horrified at the quality!) of the 
girls free promotion of the band and their concert and quite possibly 
people at the staff party might well buy a DVD or go to the next concert.


>>     * Making a direct recording of a performance without the
>>permission of the performer(s): criminal offence, $6,600 fine;
>>     * Possessing equipment to copy an unauthorised recording:
>>criminal offence, $6,600 fine;
>>     * Making a copy of an unauthorised recording: criminal offence,
>>$6,600 fine;
>>     * Paying an unauthorised recording publicly: criminal offence,
>>$6,600 fine.
>>       Advertisement
>>
>>       Total fines: $26,400.

See I think this is wrong too.  There has to be intent in order to bring 
cause of a crime.


>>And she's not alone. These laws are so broad that they also catch:

I tend to agree that the laws are broad.  But then so to it is in the 
criminal code where it says about Computers:

Even if a person is not capable of committing an offence, be it lack of 
skill or equipment, they are guilty of the offence if it is possible that 
the offence could be committed, even in the future.

The same applies to a Terrorist act - or lack thereof.  If an office has a 
reason to belive (someone whispered in their ear) that you could mix some 
chemicals (could in every persons garage and laundry and pool area) you are 
guilty of terrorism.  Even if you didn't intend to mix the chemicals.

I won't go on about mental health and child abuse :)  My pet topics!

>>     * The company, selling a research report, whose employee cut- 
>> and-pasted a photograph from online to make the cover look pretty;

Well that's plain stupid!

>>     * You, if you own a device that will be used for making
>>infringing copies. Make sure you get rid of that video-recorder
>>you're using to tape TV shows for your mother-in-law.

Hang on, the law says "If you own a device with the intent to make 
infringing copies" it does not say "if you own a device that can make 
infringing copies"

The words might still be broad, but there has to be a consequence of intent.

There is also an inclusion in the legislation that allows for a person who 
purchases copyright material to make one copy for their own use, in order 
to preserve the original purchase.  (Finally!)

>>The proposed bill also creates on-the-spot fines -- infringe
>>copyright and you could be up for a $1,320 fine, on the spot. While
>>we've always had criminal offences in the Copyright Act, these laws
>>only applied to people who act intentionally or recklessly. The
>>requirement of intent is one of the most fundamental protections of
>>criminal law. The Copyright Amendment Bill removes that: you can
>>now be a copyright criminal without knowledge or intention.

I doubt a court would hold it up.  Mens Rea is critical in the process of a 
criminal act.

If you went to a concert, recorded a song on your phone, took it home, 
burnt it to 50 DVD's and sold them for $2 each, then I think you might 
stand more chance of a successful prosecution.

You realise of course as a person who has a copyright in a feature film I 
might just have to execute warrants on government agencies, ABC and other 
places to ensure they don't have infringing copies of my work!

It works both ways.  I will enforce my copyrights against those who 
intentionally make copies because they don't want to purchase a licenced 
copy from me.

>If a paparazzi takes a picture of you in the street or a news
>camerman takes a video of you in the street can you sue?

No, public place.

>What is a "performance" anyway?

Pretty much anything.  But you'd be hard pressed to claim a performance by 
simply walking down the street.

>Does that include buskers?

It already does.

>If you suddenly start busking does that count as a performance?

It already does.

>Does hiring a hall mean that you are making a "performance"?

If you have members of the general public attending yes.  If you play 
copyright music in a hired call for the purpose of entertainment, yes.

>Does the media have special rights that the rest of us don't?

No, except the ABC, they have, in their own words, the right to infringe 
anyones copyright, even with knowingly stolen material!