Queensland University of Technology Are the Offences in the Copyright Act 1968 (Cth) Legitimate and Effective? An Analysis based in Harm and Social Norms Theory Steven Gething B.A (Hons) G.D.L LL.M 27 August 2012 This thesis examines the effectiveness of offences in the Copyright Act 1968 (Cth) in the online environment The application of social norm theories suggests that the offences will be ineffective in creating an effective deterrent to non-commercial copyright infringement QUT Verified Signature Table of Contents CHAPTER 1: INTRODUCTION [1] Overview [2] Theoretical approach [3] Methodology [4] Thesis structure PART I: HISTORY AND THEORY CHAPTER 2: THE DEVELOPMENT OF COPYRIGHT OFFENCES IN AUSTRALIA 11 [1] Introduction 11 [2] Overview 12 [3] Pre-Federation 13 [4] The Copyright Act 1905 (Cth) 13 [5] The Copyright Act 1912 (Cth) 14 [6] The Copyright Act 1968 (Cth) 16 [7] The Copyright Amendment Act 1980 (Cth) 17 [8] The Copyright Amendment Act 1984 (Cth) 19 [9] The Copyright Amendment Act 1986 (Cth) 20 [10] The Copyright Amendment Act 1989 (Cth) 23 [11] The Copyright Amendment Act 1998 (Cth) 25 [12] The Copyright Amendment (Digital Agenda) Act 2000 (Cth) 26 [13] The Copyright Amendment (Parallel Importation) Act 2003 (Cth) 28 [14] The US Free Trade Agreement Implementation Act 2004 (Cth) and the Copyright Legislation Amendment Act 2004 (Cth) 28 [15] The Copyright Amendment Act 2006 (Cth) 29 [16] Conclusion 30 CHAPTER 3: THEORETICAL BACKGROUND 31 [1] Introduction 31 [2] The Harm Principle 32 [2.1] Measuring Harm 34 [3] Social Norms Theory 36 [4.1] How Social Norms Originate and Operate 39 [4.2] The Influence of Norms on Behaviour 40 [5] Conclusion 45 PART II: LEGISLATION 47 CHAPTER 4: APPLICATION OF THE CRIMINAL CODE ACT 1995 (CTH) TO THE COPYRIGHT ACT 1968 (CTH) 49 [1] Introduction 49 [2] Elements of an Offence 50 [2.1] Physical Elements 50 [2.2] Fault Elements 53 [3] Defences 63 [3.1] Section 9.2: Mistake of Fact (Strict Liability) 63 [3.2] Section 10.1: Intervening conduct or event 64 [4] Section 11.3: Commission by proxy 65 [5] Conclusion 66 CHAPTER 5: SUBSTANTIAL INFRINGEMENT ON A COMMERCIAL SCALE AND INFRINGING COPIES 69 [1] Introduction 69 [2] Part V – Remedies and Offences, Division V – Offences, Subdivision A: Preliminaries 70 [2.1] Section 132AA: Definitions 70 [2.2] Section 132AB: Geographical application 70 [3] Subdivision B: Substantial infringement on a commercial scale 71 [3.1] Section 132AC: Commercial-scale infringement prejudicing copyright owner 72 [4] Subdivision C: Infringing Copies 76 [4.1] Common Elements 77 [4.2] Section 132AD: Making infringing copy commercially 78 [4.3] Section 132AE: Selling or Hiring Out Infringing Copy 83 [4.4] Section 132AF: Offering infringing copy for sale or hire 85 [4.5] Section 132AG: Exhibiting infringing copy in public commercially 93 [4.6] Section 132AH: Importing infringing copy commercially 97 [4.7] Section 132AI: Distributing infringing copy 103 [4.8] Section 132AJ: Possessing infringing copy for commerce 112 [4.9] Section 132AK: Aggravated offence 115 [4.10] Section 132AL: Making or possessing device for making infringing copy 116 [4.11] Section 132AM: Advertising supply of infringing copy 121 [5] Conclusion 123 CHAPTER 6: AIRING OF WORKS, TPM, ERM, AND ENCODED BROADCASTS 125 [1] Introduction 125 [2] Subdivision D: Airing of works, sound recordings and films 126 [2.1] Section 132AN: Causing work to be performed publicly 126 [2.2] Section 132AO: Causing recording or film to be heard or seen in public 132 [3] Subdivision E: Technological protection measures 133 [3.1] Section 132APC: Circumventing an access control technological protection measure 135 [3.2] Section 132APD: Manufacturing etc a circumvention device for a technological protection measure 146 [3.3] Section 132APE: Providing etc a circumvention service for a technological protection measure 151 [4] Subdivision F: Electronic Rights Management Information 152 [4.1] Definition of ERM Information 153 [4.1.1] “is electronic” 153 [4.1.2] “is or was attached to, or is or was embodied in, a copy of the work” 154 [4.1.3] “appears or appeared in connection with a communication, or the making available” 155 [4.1.4] “identifies the work or subject-matter, and its author or copyright owner” or “terms and conditions” 155 [4.2] Section 132AQ: Removing or altering ERM information 156 [4.3] Section 132AR: Distributing, importing or communicating copies after removal or alteration of ERM information 161 [4.4] Section 132AS: Distributing or importing ERM information 167 [4.5] Section 132AT: Defences 168 [5] Part VAA – Unauthorised access to encoded broadcasts, Division – Offences , Subdivision A: Offences 169 [5.1] Section 135AL: Definitions 169 [5.2] Section 135AN: Law enforcement exemption 169 [5.3] Section 135ASA: Making unauthorised decoder 170 [5.4] 135ASB: Selling or hiring; 135ASC: Offering for sale or hire; 135ASD: Commercially exhibiting; 132ASE: Importing; 135ASF: Distributing 173 [5.5] Section 135ASG: Making unauthorised decoder available online 175 [5.6] Section 135ASH: Making decoder available online for subscription broadcast 176 [5.7] Section 135ASI: Unauthorised access to subscription broadcast 177 [5.8] Section 135ASJ: Causing unauthorised access to encoded broadcast 178 [6] Conclusion 179 CHAPTER 7:PERFORMERS’ PROTECTION 181 [1] Introduction 181 [2] Preliminaries 181 [2.1] Protection periods 181 [2.2] Recordings and exempt recordings 182 [2.3] Direct and indirect recordings 182 [2.4] Part XIA performances and qualifying persons 183 [3] Part XIA Division Subdivision A – General Offences 184 [3.1] Section 248PA: Unauthorised direct recording during the protection period 184 [3.2] Section 248PB: Unauthorised indirect recording during protection period 188 [3.3] Section 248PC: Unauthorised communication to public during 20-year protection period 189 [3.4] Section 248PD: Playing unauthorised recording publicly during 20-year protection period 191 [3.5] Section 248PE: Possessing equipment to make or copy unauthorised recording 191 [3.6] Section 248PF: Copying unauthorised recording 193 [3.7] Section 248PG: Unauthorised copying of exempt recording 194 [3.8] Section 248PH: Unauthorised copying of authorised sound recording 195 [3.9] Section 248PI: Selling etc unauthorised recording 197 [3.10] Section 248PJ: Distributing unauthorised recording 199 [3.11] Section 248PK: Commercial possession or import of unauthorised recording 200 [3.12] Section 248PL: Exhibiting unauthorised recording in public by way of trade 201 [3.13] Section 248PM: Importing unauthorised recording for exhibition by way of trade 201 [4] Part XIA Division Subdivision B – Acts relating to sound recordings of performances given before July 1995 202 [5] Conclusion 205 PART III: ANALYSIS, RECOMMENDATIONS AND CONCLUSIONS 207 CHAPTER 8: ANALYSIS AND RECOMMENDATIONS 209 [1] Introduction 209 [2] Remedial Recommendations for the Current Regime of Criminal Sanctions 209 [2.1] Strict Liability Offences 210 [2.2] Making or possessing a device for making an infringing copy 218 [2.3] ERM Offences 219 [2.4] Decoder Offences 219 [2.5] Performers’ protection 220 [2.6] Summary of remedial recommendations 220 [3] Theoretical Application 222 [3.1] Measuring the Harm Caused to Copyright Owners 222 [3.2] Assessing the Harm Caused to the Public Welfare 232 [3.4] Overall Conclusion on Harm Assessment 236 [3.5] Social Norms Concerning Copyright Works 239 [4] Recommendations for More Fundamental Changes 248 [4.1] Incorporating the Harm Principle 249 [4.2] Treaty Obligations for Criminal Enforcement 250 [4.3] Copyright and Related Offences in US Law Compared 251 [4.4] Proposed Legislative Amendments 260 [5] Conclusion 264 CHAPTER 9: CONCLUSION 267 BIBLIOGRAPHY 271 Books 271 Book Chapters 273 Journal Articles 274 Legislation 283 Bills 286 Treaties 286 Parliamentary Documents 287 Cases 288 Internet Resources 295 APPENDIX: RELEVANT LEGISLATION 301 The Criminal Code Act 1995 (Cth) 301 The Copyright Act 1968 (Cth) 312 Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) Summary offence (3) A person commits an offence if: (a) the person makes a copy of a recording of a performance; and (b) the copy is made during the protection period of the performance; and (c) the copy is made without the authority of the performer and the person is negligent as to that fact; and (d) the recording is an exempt recording; and (e) the copy is not an exempt recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 Strict liability offence (5) A person commits an offence if: (a) the person makes a copy of a recording of a performance; and (b) the copy is made during the protection period of the performance; and (c) the copy is made without the authority of the performer; and (d) the recording is an exempt recording; and (e) the copy is not an exempt recording Penalty: 60 penalty units (6) Subsection (5) is an offence of strict liability Note: For strict liability, see section 6.1 of the Criminal Code 248PH Unauthorised copying of authorised sound recording Indictable offence (1) A person commits an offence if: (a) the person makes a copy of a sound recording of a performance, intending that the copy be used in a sound-track; and (b) the copy is made during the 20-year protection period of the performance; and (c) the copy is made without the authority of the performer; and (d) the sound recording is an authorised sound recording; and (e) the making of the sound recording was not authorised for the purpose of use in that or any other sound-track (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than years, or both Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) 373 Summary offence (3) A person commits an offence if: (a) the person makes a copy of a sound recording of a performance, intending that the copy be used in a sound-track; and (b) the copy is made during the 20-year protection period of the performance; and (c) the copy is made without the authority of the performer and the person is negligent as to that fact; and (d) the sound recording is an authorised sound recording; and (e) the making of the sound recording was not authorised for the purpose of use in that or any other sound-track and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 Strict liability offence (5) A person commits an offence if: (a) the person makes a copy of a sound recording of a performance in preparation for use in a sound-track; and (b) the copy is made during the 20-year protection period of the performance; and (c) the copy is made without the authority of the performer; and (d) the sound recording is an authorised sound recording; and (e) the making of the sound recording was not authorised for the purpose of use in that or any other sound-track Penalty: 60 penalty units (6) Subsection (5) is an offence of strict liability For strict liability, see section 6.1 of the Criminal Code Note: 248PI Selling etc unauthorised recording Indictable offence (1) A person commits an offence if: (a) the person does any of the following acts: (i) sells a recording of a performance; (ii) lets for hire a recording of a performance; (iii) by way of trade offers or exposes for sale or hire a recording of a performance; and (b) the act is done during the protection period of the performance; and (c) the recording is an unauthorised recording Note: Under section 248CA, the protection period of a performance is: (a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and (b) a 50-year protection period so far as this section relates to a sound recording of the performance 374 (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than years, or both Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) Summary offence (3) A person commits an offence if: (a) the person does any of the following acts: (i) sells a recording of a performance; (ii) lets for hire a recording of a performance; (iii) by way of trade offers or exposes for sale or hire a recording of a performance; and (b) the act is done during the protection period of the performance; and (c) the recording is an unauthorised recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 Strict liability offence (5) A person commits an offence if: (a) the person does any of the following acts: (i) sells a recording of a performance; (ii) lets for hire a recording of a performance; (iii) by way of trade offers or exposes for sale or hire a recording of a performance; and (b) the act is done during the protection period of the performance; and (c) the recording is an unauthorised recording Penalty: 60 penalty units (6) Subsection (5) is an offence of strict liability For strict liability, see section 6.1 of the Criminal Code Note: 248PJ Distributing unauthorised recording Indictable offences (1) A person commits an offence if: (a) the person distributes a recording of a performance, with the intention of trading; and (b) the distribution occurs during the protection period of the performance; and (c) the recording is an unauthorised recording Note: Under section 248CA, the protection period of a performance is: (a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and 375 (b) a 50-year protection period so far as this section relates to a sound recording of the performance (2) A person commits an offence if: (a) the person distributes a recording of a performance; and (b) the distribution occurs during the protection period of the performance; and (c) the distribution will affect prejudicially the financial interests of the performer in the performance; and (d) the recording is an unauthorised recording (3) An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than years, or both Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) Summary offences (4) A person commits an offence if: (a) the person distributes a recording of a performance, with the intention of trading; and (b) the distribution occurs during the protection period of the performance; and (c) the recording is an unauthorised recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (5) A person commits an offence if: (a) the person distributes a recording of a performance; and (b) the distribution occurs during the protection period of the performance; and (c) the distribution will affect prejudicially the financial interests of the performer in the performance; and (d) the recording is an unauthorised recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (6) An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914 Strict liability offence (7) A person commits an offence if: (a) the person distributes a recording of a performance in preparation for, or in the course of, trade; and (b) the distribution occurs during the protection period of the performance; and (c) the recording is an unauthorised recording Penalty: 60 penalty units (9) Subsection (7) is an offence of strict liability Note: For strict liability, see section 6.1 of the Criminal Code 376 248PK Commercial possession or import of unauthorised recording Indictable offence (1) A person commits an offence if: (a) the person possesses, or imports into Australia, a recording of a performance, with the intention of doing any of the following: (i) selling the recording; (ii) letting the recording for hire; (iii) by way of trade offering or exposing the recording for sale or hire; (iv) distributing the recording either for the purpose of trade or to an extent that will affect prejudicially the financial interests of the performer in the performance; and (b) the possession or import occurs during the protection period of the performance; and (c) the recording is an unauthorised recording Note: Under section 248CA, the protection period of a performance is: (a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and (b) a 50-year protection period so far as this section relates to a sound recording of the performance (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than years, or both Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) Summary offence (3) A person commits an offence if: (a) the person possesses, or imports into Australia, a recording of a performance, with the intention of doing any of the following: (i) selling the recording; (ii) letting the recording for hire; (iii) by way of trade offering or exposing the recording for sale or hire; (iv) distributing the recording either for the purpose of trade or to an extent that will affect prejudicially the financial interests of the performer in the performance; and (b) the possession or import occurs during the protection period of the performance; and (c) the recording is an unauthorised recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 Strict liability offence (5) A person commits an offence if: 377 (a) the person possesses, or imports into Australia, a recording of a performance in preparation for, or in the course of, doing any of the following: (i) selling the recording; (ii) letting the recording for hire; (iii) by way of trade offering or exposing the recording for sale or hire; (iv) distributing the recording for trade; and (b) the possession or import occurs during the protection period of the performance; and (c) the recording is an unauthorised recording Penalty: 60 penalty units (6) Subsection (5) is an offence of strict liability For strict liability, see section 6.1 of the Criminal Code Note: 248PL Exhibiting unauthorised recording in public by way of trade Indictable offence (1) A person commits an offence if: (a) the person by way of trade exhibits in public a recording of a performance; and (b) the exhibition occurs during the protection period of the performance; and (c) the recording is an unauthorised recording Note: Under section 248CA, the protection period of a performance is: (a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and (b) a 50-year protection period so far as this section relates to a sound recording of the performance (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than years, or both Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) Summary offence (3) A person commits an offence if: (a) the person by way of trade exhibits in public a recording of a performance; and (b) the exhibition occurs during the protection period of the performance; and (c) the recording is an unauthorised recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 Strict liability offence (5) A person commits an offence if: (a) the person by way of trade exhibits in public a recording of a performance; and 378 (b) the exhibition occurs during the protection period of the performance; and (c) the recording is an unauthorised recording Penalty: 60 penalty units (6) Subsection (5) is an offence of strict liability For strict liability, see section 6.1 of the Criminal Code Note: 248PM Importing unauthorised recording for exhibition by way of trade Indictable offence (1) A person commits an offence if: (a) the person imports into Australia a recording of a performance, with the intention of exhibiting the recording in public by way of trade; and (b) the import occurs during the protection period of the performance; and (c) the recording is an unauthorised recording Note: Under section 248CA, the protection period of a performance is: (a) a 20-year protection period so far as this section relates to a cinematograph film of the performance; and (b) a 50-year protection period so far as this section relates to a sound recording of the performance (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than years, or both Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) Summary offence (3) A person commits an offence if: (a) the person imports into Australia a recording of a performance, with the intention of exhibiting the recording in public by way of trade; and (b) the import occurs during the protection period of the performance; and (c) the recording is an unauthorised recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 Strict liability offence (5) A person commits an offence if: (a) the person imports into Australia a recording of a performance, in preparation for exhibiting the recording in public by way of trade; and (b) the import occurs during the protection period of the performance; and (c) the recording is an unauthorised recording Penalty: 60 penalty units (6) Subsection (5) is an offence of strict liability 379 Note: For strict liability, see section 6.1 of the Criminal Code Subdivision B—Acts relating to sound recordings of performances given before July 1995 248QA Scope of this Subdivision (1) This Subdivision applies to an act done in Australia on or after the commencement of this Subdivision, in relation to a performance given at any time before July 1995 Note 1: That day was the day on which Part of the Copyright (World Trade Organization Amendments) Act 1994 commenced Note 2: This Subdivision commenced when it was included in this Act by Part of Schedule to the Copyright Amendment Act 2006 (2) This Subdivision has effect despite section 14.1 (Standard geographical jurisdiction) of the Criminal Code 248QB Possessing equipment for copying unauthorised sound recording Indictable offence (1) A person commits an offence if: (a) the person possesses a plate or recording equipment, intending it to be used for making a copy of an unauthorised sound recording of a performance; and (b) the possession occurs during the 50-year protection period of the performance (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than years, or both Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) Summary offence (3) A person commits an offence if: (a) the person possesses a plate or recording equipment; and (b) the plate or recording equipment is to be used for making a copy of a sound recording of a performance; and (c) the recording is an unauthorised recording of the performance and the person is negligent as to that fact; and (d) the possession occurs during the 50-year protection period of the performance Penalty: 120 penalty units or imprisonment for years, or both (4) To avoid doubt, recklessness is the fault element for the circumstance that the plate or recording equipment is to be used for making a copy of a sound recording of a performance (5) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 380 No need to prove which recording is to be copied (8) In a prosecution for an offence against this section, it is not necessary to prove which particular recording is intended to be, or will be, copied using the device 248QC Copying unauthorised sound recording Indictable offence (1) A person commits an offence if: (a) the person makes a copy of a sound recording of a performance; and (b) the copy is made during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than years, or both Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) Summary offence (3) A person commits an offence if: (a) the person makes a copy of a sound recording of a performance; and (b) the copy is made during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 Strict liability offence (5) A person commits an offence if: (a) the person makes a copy of a sound recording of a performance; and (b) the copy is made during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording Penalty: 60 penalty units (6) Subsection (5) is an offence of strict liability Note: For strict liability, see section 6.1 of the Criminal Code 248QD Selling etc unauthorised sound recording Indictable offence (1) A person commits an offence if: (a) the person does any of the following acts: (i) sells a sound recording of a performance; (ii) lets for hire a sound recording of a performance; 381 (iii) by way of trade offers or exposes for sale or hire a sound recording of a performance; and (b) the act is done during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than years, or both Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) Summary offence (3) A person commits an offence if: (a) the person does any of the following acts: (i) sells a sound recording of a performance; (ii) lets for hire a sound recording of a performance; (iii) by way of trade offers or exposes for sale or hire a sound recording of a performance; and (b) the act is done during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 Strict liability offence (5) A person commits an offence if: (a) the person does any of the following acts: (i) sells a sound recording of a performance; (ii) lets for hire a sound recording of a performance; (iii) by way of trade offers or exposes for sale or hire a sound recording of a performance; and (b) the act is done during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording Penalty: 60 penalty units (6) Subsection (5) is an offence of strict liability Note: For strict liability, see section 6.1 of the Criminal Code 248QE Distributing unauthorised sound recording Indictable offences (1) A person commits an offence if: (a) the person distributes a sound recording of a performance, with the intention of trade; and 382 (b) the distribution occurs during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording (2) A person commits an offence if: (a) the person distributes a sound recording of a performance; and (b) the distribution occurs during the 50-year protection period of the performance; and (c) the distribution will affect prejudicially the financial interests of the performer in the performance; and (d) the recording is an unauthorised recording (3) An offence against subsection (1) or (2) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than years, or both Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) Summary offences (4) A person commits an offence if: (a) the person distributes a sound recording of a performance, with the intention of trade; and (b) the distribution occurs during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (5) A person commits an offence if: (a) the person distributes a sound recording of a performance; and (b) the distribution occurs during the 50-year protection period of the performance; and (c) the distribution will affect prejudicially the financial interests of the performer in the performance; and (d) the recording is an unauthorised recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (6) An offence against subsection (4) or (5) is a summary offence, despite section 4G of the Crimes Act 1914 Strict liability offence (7) A person commits an offence if: (a) the person distributes a sound recording of a performance in preparation for, or in the course of, trade; and (b) the distribution occurs during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording 383 Penalty: 60 penalty units (9) Subsection (7) is an offence of strict liability Note: For strict liability, see section 6.1 of the Criminal Code 248QF Commercial possession or import of unauthorised sound recording Indictable offence (1) A person commits an offence if: (a) the person possesses, or imports into Australia, a sound recording of a performance, with the intention of doing any of the following: (i) selling the recording; (ii) letting the recording for hire; (iii) by way of trade offering or exposing the recording for sale or hire; (iv) distributing the recording either for the purpose of trade or to an extent that will affect prejudicially the financial interests of the performer in the performance; and (b) the possession or import occurs during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than years, or both Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) Summary offence (3) A person commits an offence if: (a) the person possesses, or imports into Australia, a sound recording of a performance, with the intention of doing any of the following: (i) selling the recording; (ii) letting the recording for hire; (iii) by way of trade offering or exposing the recording for sale or hire; (iv) distributing the recording either for the purpose of trade or to an extent that will affect prejudicially the financial interests of the performer in the performance; and (b) the possession or import occurs during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 Strict liability offence (5) A person commits an offence if: 384 (a) the person possesses, or imports into Australia, a sound recording of a performance in preparation for, or in the course of, doing any of the following: (i) selling the recording; (ii) letting the recording for hire; (iii) by way of trade offering or exposing the recording for sale or hire; (iv) distributing the recording for trade; and (b) the possession or import occurs during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording Penalty: 60 penalty units (6) Subsection (5) is an offence of strict liability Note: For strict liability, see section 6.1 of the Criminal Code 248QG Exhibiting unauthorised sound recording in public by way of trade Indictable offence (1) A person commits an offence if: (a) the person by way of trade exhibits in public a sound recording of a performance; and (b) the exhibition occurs during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than years, or both Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) Summary offence (3) A person commits an offence if: (a) the person by way of trade exhibits in public a sound recording of a performance; and (b) the exhibition occurs during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 Strict liability offence (5) A person commits an offence if: (a) the person by way of trade exhibits in public a sound recording of a performance; and 385 (b) the exhibition occurs during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording Penalty: 60 penalty units (6) Subsection (5) is an offence of strict liability Note: For strict liability, see section 6.1 of the Criminal Code 248QH Importing unauthorised sound recording for exhibition by way of trade Indictable offence (1) A person commits an offence if: (a) the person imports into Australia a sound recording of a performance, with the intention of exhibiting the recording in public by way of trade; and (b) the import occurs during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than years, or both Note: A corporation may be fined up to times the amount of the maximum fine (see subsection 4B(3) of the Crimes Act 1914) Summary offence (3) A person commits an offence if: (a) the person imports into Australia a sound recording of a performance, with the intention of exhibiting the recording in public by way of trade; and (b) the import occurs during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording and the person is negligent as to that fact Penalty: 120 penalty units or imprisonment for years, or both (4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914 Strict liability offence (5) A person commits an offence if: (a) the person imports into Australia a sound recording of a performance in preparation for exhibiting the recording in public by way of trade; and (b) the import occurs during the 50-year protection period of the performance; and (c) the recording is an unauthorised recording Penalty: 60 penalty units (6) Subsection (5) is an offence of strict liability Note: For strict liability, see section 6.1 of the Criminal Code.” 386 ... assist in forming the offences Are the Offences in the Copyright Act 1968 (Cth) Legitimate and Effective? An Analysis in Harm and Social Norms Theory Chapter examines the extent of criminal liability... Rational-Choice Theories of Social Norms and the Pragmatics of Explanation’ (2002) 77 Indiana Law Journal Are the Offences in the Copyright Act 1968 (Cth) Legitimate and Effective? An Analysis in Harm and Social. .. 15 Are the Offences in the Copyright Act 1968 (Cth) Legitimate and Effective? An Analysis in Harm and Social Norms Theory for a copyright offence in Australia and represented a significant enhancement