House of Representatives Standing Committee on Legal and Constitutional Affairs ‘Cracking down on copycats: enforcement of Copyright in Australia’ – Overview of Government Response – June 2003
Following the tabling of the Report, the Government received representations and submissions on its recommendations from various organisations and groups, and held discussions with a number of them. These were the Australian Digital Alliance, the Business Software Alliance, the Australian Copyright Council, the Australian Vice Chancellors’ Committee, Allen Allen and Hemsley on behalf of Sony Entertainment Australia, the Australian Information Industry Association, Copyright Agency Limited, the National Copyright Industry Alliance and Music Industry Piracy Investigations.
Discussions were also held amongst those Commonwealth agencies directly involved in the Committee’s recommendations and those with a direct policy interest. Advice was also received from the Federal Court of Australia, particularly regarding the recommendation of the Committee on guideline judgements and the Federal Magistrates Service.
The report makes a sizeable number of recommendations covering a full range of enforcement issues including criminal sanctions, civil remedies for infringement, public awareness and education, institutional arrangements as well as some consideration of matters of court practice. The Government thanks the Committee for its report and the significant range of its options for possible action.
The Government has examined the Committee’s recommendations in the context of Commonwealth criminal law and civil justice policies and priorities as well as copyright policy per se. Copyright policy seeks to ensure that copyright law continues to promote creative endeavour whilst allowing reasonable access to copyright material. Policy affecting the balance of rights between copyright owners and users includes consideration of the impact of legislation on owners, users and distributors of copyright, including appropriate enforcement mechanisms and compliance costs for business and the community at large. These are important public policy objectives and must be given due weight in the formulation of all legal sanctions, both civil and criminal.
In its response, the Government has been mindful to ensure that civil liberties are not improperly and unfairly encroached upon. Law enforcement powers must be appropriate to the circumstances, and adequate means of supervision and review are necessary. Further, the allocation of public resources for enforcement of this issue must be proportionate to the nature of the issue and to all of the other matters for which public resources are required. These include such matters as investigation and prosecution of offences against persons, major frauds, drug offences, other thefts of personal property, white collar crime in a more general sense, and offences against the Government or the national interest.
In the Government’s view, the key issues of concern identified by the Committee in relation to copyright enforcement were in the areas of:
- difficulties of proof of subsistence and ownership of copyright
- adequacy of provisional measures (Anton Piller Orders)
- criminal deterrents in the form of penalties, sentences and judicial views concerning the severity of infringements
- remedies in civil actions, including addressing flagrant behaviour and deterrent effect and the cost of utilising the civil legal system, and
- understanding and awareness of copyright.
The Government’s response focuses on addressing the most significant of these issues and providing direct and practical assistance within the context of a balanced general policy framework.
As such, the Government proposes to move to implement measures to ease the burden of proof of subsistence and ownership of copyright and improve the provisions for damages in civil cases. Amendments will also be prepared to apply criminal penalties to advertising of all infringing copies (this currently only applies to software).
Concerning operational matters, the Government has already taken steps to improve the gathering, sharing and use of intelligence on intellectual property offences through a consultative mechanism in conjunction with industry. This process is being further developed with the active involvement of the Australian Federal Police and the Australian Customs Service. The Government also supports the Federal Magistrates Service (FMS) having jurisdiction in non-criminal and less complex copyright matters.
The Government will consider further action in support of current activities of public awareness and understanding of intellectual property matters.
These measures will provide a range of important enhancements to a system of enforcement that has continued to provide a comparatively effective system of assistance to copyright owners in the defence of their intellectual property. They will enhance legal means of pursuing enforcement of rights but without sacrificing the rights of persons accused, or defendants. They will provide copyright owners with improved tools and the incentive to act in their own interests without providing them, or law enforcement authorities, with measures or powers so intrusive or so powerful they are able to be used oppressively or impose disproportionate compliance costs on business and the community.
The administrative and legislative steps proposed by the Government will still require effective and pro-active steps on the part of the industries or copyright owners affected. The overall responses from various representatives of both copyright industries and trade mark owners to the steps taken on industry consultation on criminal enforcement (referred to in the response to recommendation 21) are a promising step in this regard.
The detail of the Government’s response to the Committee’s recommendations follows.