Australia: "You´re Nicked! Now Cuff ´Im Boys And Put ´Im In The Paddy Wagon."New Criminal Offences For Copyright Infringement Will Catch Out Big And Small Players Alike

Are you a criminal? You might need to re-think your answer if the Federal Government passes its proposed new copyright laws. The proposed laws introduce tough criminal provisions that could catch out a lot of people.

You may have noticed recent headlines warning that recording concerts like U2 on your mobile phone will soon be a crime if the proposed new laws are passed. We don't necessarily agree with this view.

The newspapers warn that under the new copyright laws you might face criminal charges for any of the following activities.

• Making a recording of a concert on your mobile phone or camera.
• Uploading the recording on to a peer to peer video sharing web site like YouTube.
• Making a copy of a music CD to give to a friend.
• Recording the Sunday night movie to watch later.

Generally speaking, the first three of these activities are already unlawful copyright infringements, but will not necessarily attract criminal charges. Recording the Sunday movie for your own use is and will remain, legal.

Recording a concert on your phone or camera solely for personal use will not be considered a crime, although, depending upon the quality and length of your recording, it might be a civil infringement of U2's copyright (i.e. U2 can sue you and you will be liable to pay damages).

Interestingly, whether you infringe U2's copyright isn't as straightforward as some commentators would have you believe. It is entirely possible that your recording won't infringe U2's copyright at all. There are however a number of qualifications to this view.

Whether your recording of the concert, or of a particular song, infringes U2's copyright depends on whether you record a substantial part of the concert, or song. If your recording is not of a substantial part, then you are not liable for civil infringement or guilty of a crime.

Whether your recording is substantial is a tricky question. One way to test it is to compare your phone recording with the actual concert or an authorised recording of the concert. The main issue is the quality of the recording rather than its length. Your recording might not be a substantial copy that infringes the Copyright Act.

Our view is that it is unlikely that a short phone recording would constitute a substantial part', and therefore would not be illegal.

However, if you do make a substantial phone recording and then go on to sell it for your own profit, or distribute it on a scale that would have a negative impact on U2's profits, then you may be charged with a criminal offence under the proposed new laws.

If you upload your phone recording of the U2 concert, you are making an illegal copy of the recording. Under the proposed new laws, this would be a criminal offence.

Uploading a recording on to a web site like YouTube gives millions of people access to the video. If you record a song at a U2 concert and then upload it on to YouTube, millions of people can see that video who might otherwise have bought a DVD or CD from U2's record company.

This means the record company will suffer a loss because you have uploaded your video on to YouTube, and under the proposed new copyright laws this constitutes an offence. This again assumes that the copy you upload is "substantial".

Newspapers suggest that under the new laws copying music will be a crime.

Making a copy of a music CD is a civil copyright infringement under current laws. Record companies in the US have sued a number of individuals for this type of infringement to act as a warning to people not to copy music.

The new criminal offences would only apply to situations where you make the copy for your own profit, or on a scale that causes a significant loss to the record company. You would be unlikely to face criminal charges for making a copy of a CD as a gift for a friend (although it would still be unlawful).

Thankfully the newspapers got this one wrong. Under the new laws you would be allowed to record the Sunday movie to watch later at home. This is known as time shifting.

Currently, you are permitted to record a TV or radio broadcast for your own private use. The proposed laws say that it is only lawful to record TV or radio so that you can watch it later. You can loan the recording to family or household members, but you can't sell it, hire it, or display it in public.

Be careful. The government is set to enforce its tough new regime with an iron fist. If passed, the new laws will allow police to issue fines, similar to speeding fines, for copyright infringement.

So far in Australia, individuals have not often been targeted for copyright breaches. The new laws would give the government far greater powers to enforce copyright. Even if you did not know you were breaking the law you could still face criminal charges.

If you do get in trouble, it's worth checking that the police have their facts straight.
By Nathan Mattock and Hannah Petrie

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.