DOCSLIB.ORG

Offences in the Copyright Act 1968 (Cth) Legitimate and Effective? an Analysis Based in Harm and Social Norms Theory

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Offences in the Copyright Act 1968 (Cth) Legitimate and Effective? an Analysis Based in Harm and Social Norms Theory 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. 1 QUT Verified Signature Table of Contents CHAPTER 1: INTRODUCTION ...................................................................................................................................... 1 [1] Overview ................................................................................................................................................... 1 [2] Theoretical approach ................................................................................................................................ 2 [3] Methodology ............................................................................................................................................ 4 [4] Thesis structure ........................................................................................................................................ 4 PART I: HISTORY AND THEORY ..................................................................................................................... 9 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 ....................................................
Load more

Recommended publications
  • Media Release
    Media Release 27 August 2019 WHAT’S ON AT THE STAR GOLD COAST FROM SEPTEMBER Spring has sprung at The Star with a range of thrilling dining and entertainment experiences on offer, including Father’s Day specials, Mexican themed month at Harvest Buffet – and exclusive new menu items available at signature dining venues Kiyomi and Cucina Vivo. SPECIAL EVENTS Father’s Day Whatever flavour you favour, The Star is the perfect place to treat your Dad. From cool and casual to first- class and fancy, you'll make it a day to remember when you share it at The Star. More info: https://www.star.com.au/goldcoast/whats-on/fathers-day • Garden Kitchen & Bar: Spend Father’s Day at Garden Kitchen & Bar and treat Dad to a delicious lunch special. Rotisserie Borrowdale porchetta, with duck fat roasted kipfler potatoes, red onion jam, salted crackling and port jus for $29 per person. Lunch available from 12pm-4pm. • Cucina Vivo: Spoil Dad with a 500g grass fed scotch fillet with roast Darling Downs potato, roast Stanthorpe broccoli, and a side of garlic focaccia. Served with an ice cold Italian lager for $45 per person. Available lunch 12pm-3pm | Dinner 5.30pm – 9pm. • Nineteen at The Star: Treat Dad to a relaxing and luxurious lunch this Father’s Day at Nineteen at The Star with our delectable three-course menu for $120 per person. Think prawn cocktail Américane or mushroom risotto for entrees, grilled Patagonian toothfish with burnt miso or slow roast prime rib for mains and coconut and dark chocolate pavlova for dessert.
    [Show full text]
  • 247. Org Apra Amcos Correction.Pdf
    COPYRIGHT AND THE DIGITAL ECONOMY APRA|AMCOS SUBMISSIONS TABLE OF CONTENTS EXECUTIVE SUMMARY ............................................................................................. 4 OVERVIEW ................................................................................................................. 5 Australia's emerging digital economy and the Australian music industry ................ 5 A response to the Issues Paper’s general introductory comments .......................... 6 The importance of the communication right .......................................................... 10 Commercial/non-commercial ................................................................................ 10 Matters outside the scope of this inquiry ............................................................... 12 International obligations ........................................................................................ 13 The US system ..................................................................................................... 15 The Inquiry ............................................................................................................ 17 Question 1 ......................................................................................................... 17 Guiding principles for reform ................................................................................. 29 Question 2 ......................................................................................................... 29 Caching, indexing and other
    [Show full text]
  • Reconciling Social Norms and Copyright Law: Strategies for Persuading People to Pay for Recorded Music Mark F
    Journal of Intellectual Property Law Volume 17 Issue 1 Symposium - The Changing Face of Copyright Article 6 Law: Resolving the Disconnect Between 20th Century Laws and 21st Century Attitudes October 2009 Reconciling Social Norms and Copyright Law: Strategies for Persuading People to Pay for Recorded Music Mark F. Schultz Southern Illinois University School of Law Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Mark F. Schultz, Reconciling Social Norms and Copyright Law: Strategies for Persuading People to Pay for Recorded Music, 17 J. Intell. Prop. L. 59 (2009). Available at: https://digitalcommons.law.uga.edu/jipl/vol17/iss1/6 This Article is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact [email protected]. Schultz: Reconciling Social Norms and Copyright Law: Strategies for Persua RECONCILING SOCIAL NORMS AND COPYRIGHT LAW: STRATEGIES FOR PERSUADING PEOPLE TO PAY FOR RECORDED MUSIC Mark F. Schultz INTRODUCTION ................................................. 60 I. WHEN IS SURRENDER THE RIGHT OPTrION? CHANGING THE LAW OR ABANDONING ENFORCEMENT ......................... 62 A. HOW NORMS OVERCOME LAWS .............................. 63 B. DETERMINING WHEN TO CHOOSE THE SURRENDER STRATEGY .... 63 C. THE SURRENDER STRATEGY AND THE MUSIC BUSINESS .......... 68 Ii. SURVEYING THE ALTERNATE STRATEGIES ....................... 70 A. DETERRENCE: RAMPING UP ENFORCEMENT AND PENALTIES ..... 70 1. Deterrence Strategiesin General.............................
    [Show full text]
  • Annual Financial Report 30 June 2020
    Australasian Performing Right Association Limited (a company limited by guarantee) and its controlled entity ABN 42 000 016 099 Annual Financial Report 30 June 2020 Australasian Performing Right Association Limited and its controlled entity Annual Report 30 June 2020 Directors’ report For the year ended 30 June 2020 The Directors present their report together with the financial statements of the consolidated entity, being the Australasian Performing Right Association Limited (Company) and its controlled entity, for the financial year ended 30 June and the independent auditor’s report thereon. Directors The Directors of the Company at any time during or since the financial year are: Jenny Morris OAM, MNZM Non-executive Writer Director since 1995 and Chair of the Board A writer member of APRA since 1983, Jenny has been a music writer, performer and recording artist since 1980 with three top 5 and four top 20 singles in Australia and similar success in New Zealand. Jenny has recorded nine albums gaining gold, platinum and multi-platinum status in the process and won back to back ARIA awards for best female vocalist. Jenny was inducted into the NZ Music Hall of Fame in 2018. Jenny is also a non-executive director and passionate supporter of Nordoff Robbins Music Therapy Australia. Jenny presents their biennial ‘Art of Music’ gala event, which raises significant and much needed funds for the charity. Bob Aird Non-executive Publisher Director from 1989 to 2019 Bob recently retired from his position as Managing Director of Universal Music Publishing Pty Limited, Universal Music Publishing Group Pty Ltd, Universal/MCA Publishing Pty Limited, Essex Music of Australia Pty Limited and Cromwell Music of Australia Pty Limited which he held for 16 years.
    [Show full text]
  • COMMUNITY RADIO NETWORK PROGRAMS and CONTENT LIST - Content for Broadcast on Your Station
    COMMUNITY RADIO NETWORK PROGRAMS AND CONTENT LIST - Content for broadcast on your station May 2019 All times AEST/AEDT CRN PROGRAMS AND CONTENT LIST - Table of contents FLAGSHIP PROGRAMMING Beyond Zero 9 Phil Ackman Current Affairs 19 National Features and Documentary Bluesbeat 9 Playback 19 Series 1 Cinemascape 9 Pop Heads Hour of Power 19 National Radio News 1 Concert Hour 9 Pregnancy, Birth and Beyond 20 Good Morning Country 1 Contact! 10 Primary Perspectives 20 The Wire 1 Countryfolk Around Australia 10 Radio-Active 20 SHORT PROGRAMS / DROP-IN Dads on the Air 10 Real World Gardener 20 CONTENT Definition Radio 10 Roots’n’Reggae Show 21 BBC World News 2 Democracy Now! 11 Saturday Breakfast 21 Daily Interview 2 Diffusion 11 Service Voices 21 Extras 1 & 2 2 Dirt Music 11 Spectrum 21 Inside Motorsport 2 Earth Matters 11 Spotlight 22 Jumping Jellybeans 3 Fair Comment 12 Stick Together 22 More Civil Societies 3 FiERCE 12 Subsequence 22 Overdrive News 3 Fine Music Live 12 Tecka’s Rock & Blues Show 22 QNN | Q-mmunity Network News 3 Global Village 12 The AFL Multicultural Show 23 Recorded Live 4 Heard it Through the Grapevine 13 The Bohemian Beat 23 Regional Voices 4 Hit Parade of Yesterday 14 The Breeze 23 Rural Livestock 4 Hot, Sweet & Jazzy 14 The Folk Show 23 Rural News 4 In a Sentimental Mood 14 The Fourth Estate 24 RECENT EXTRAS Indij Hip Hop Show 14 The Phantom Dancer 24 New Shoots 5 It’s Time 15 The Tiki Lounge Remix 24 The Good Life: Season 2 5 Jailbreak 15 The Why Factor 24 City Road 5 Jam Pakt 15 Think: Stories and Ideas 25 Marysville
    [Show full text]
  • YEAR in REVIEW Australian Music Industry Based on a Strong the YEAR in REVIEW – Vision to Become a Globally Recognised Music Nation Powerhouse
    YEAR IN REVIEW Australian music industry based on a strong THE YEAR IN REVIEW – vision to become a globally recognised music nation powerhouse. MESSAGE FROM CHIEF Financial Overview A record year for APRA AMCOS with group EXECUTIVE DEAN ORMSTON revenue breaking the $400m milestone, Brett Cottle AM retired as CEO in June 2018 after 28 rising by 8.7% from $386.7m to $420.2m, an years presiding over a period of extraordinary increase of $33.5m on the back of continued change and growth for the organisation. Over strong growth in consumer demand for music the past 6 months there have been many delivered digitally. ‘farewell’ events and acknowledgements For APRA, gross collections rose by 10.4% to of Brett’s contribution to APRA AMCOS, $323.3m (excluding AMCOS management the wider rights management and fees), while AMCOS revenue rose 3.3% to music industries, both locally and $95.9m. internationally. I would like to add my Operating expenses across the group – personal further thanks to Brett for comprising APRA pro forma costs, system being a leader unparalleled, and a development related costs, costs of generous mentor. administering AMCOS and stand-alone This year’s report highlights the AMCOS costs – were $57.1m, up 13.1% strength of the organisation’s from last year’s figure of $50.5m. economic performance, breadth of Despite the increased system member service, and commitment to development spend APRA Net improving our industry’s ecosystem. Distributable Revenue – the amount Critical to the health of our sector is available for distribution to a direct conversation and relationship members and affiliated societies – with Federal and State governments.
    [Show full text]
  • Digital Copyright Law Exploring the Changing Interface Between
    Digital Copyright Law Exploring the Changing Interface Between Copyright and Regulation in the Digital Environment Nicholas Friedrich Scharf PhD University of East Anglia UEA Law School July 2013 Word count: 98,020 This copy of the thesis has been supplied on condition that anyone who consults it is understood to recognise that its copyright rests with the author and that use of any information derived there-from must be in accordance with current UK Copyright Law. In addition, any quotation or extract must include full attribution. Abstract This thesis seeks to address and clarify the changing interface between copyright law and other forms of regulation in the digital environment, in the context of recorded music. This is in order to explain the problems that rightsholders have had in tackling the issue of unauthorised copyright infringement facilitated by digital technologies. Copyright law is inextricably bound-up with technological developments, but the ‘convergence’ of content into a single digital form was perceived as problematic by rightsholders and was deemed to warrant increased regulation through law. However, the problem is that the reliance on copyright law in the digital environment ignores the other regulatory influences in operation. The use of copyright law in a ‘preventative’ sense also ignores the fact that other regulatory factors may positively encourage users to behave, and consume in ways that may not be directly governed by copyright. The issues digital technologies have posed for rightsholders in the music industry are not addressed, or even potentially addressable directly through law, because the regulatory picture is complex. The work of Lawrence Lessig, in relation to his regulatory ‘modalities’ can be applied in this context in order to identify and understand the other forms of regulation that exist in the digital environment, and which govern user behaviour and consumption.
    [Show full text]
  • Sebastian Moody &C
    B U Sebastian Moody &c. S PROJECTS B U ‘The View’ is a suite of conceptual paintings by Sebastian Moody. The paintings are meditations on the idea of perspective, considering this as an act that occurs simultaneously-internally and externally. Simply, the works are “thinking about looking” or “looking at thinking”. Moody’s practice is concerned with how our values and ideas are constructed. In equal parts gravitas and humour, his art is most often presented through public text works, relational performances, and painting. His well known large-scale public text works have appeared in swimming pools, vehicular underpasses, and building walls; elsewhere, Moody’s works have appeared in a diversity of public and private locations creating personals ads, market research campaigns, kitchen splashbacks, coffee cup ‘interventions’, pop- up bars, focus groups, hang gliders at music festivals, shopping receipt ‘portraits’. Moody lives and works in Brisbane where he has completed a Master of Museum Studies at The University of Queensland (2009) and a Bachelor Gallery Director: Channon Goodwin Sebastian Moody of Visual Arts at the Queensland University of Design: Adam Cruickshank The View Technology (2001). Sebastian’s projects have Photography: Marc Morel 11.06.14—28.06.14 appeared at the Queensland Performing Arts Centre, Museum of Contemporary Art Australia, This project has been assisted by the Ryan Renshaw Gallery, Splendour in the Grass, Australian Government through the Next Wave Festival 2008, Linden Centre for Australia Council, its arts funding Contemporary Arts, Bundaberg Arts Centre, and advisory body. Livid Festival, Kings ARI, Museum of Brisbane, The Goodwill Bridge, The Queensland University of Technology Art Museum and Southbank Parklands.
    [Show full text]
  • Queensland Music's Night of Nights at the Royal
    May 14, 2018 Queensland music’s night of nights at the Royal ICC The state’s best music artists and rising stars will be recognised at the Queensland Music Awards at the Royal International Convention Centre (Royal ICC) tonight. Already an ARIA award-winner, popular Gold Coast singer Amy Shark is leading the way alongside Brisbane band The Jungle Giants with three nominations each – Amy in the pop, regional and singer/songwriter categories and The Jungle Giants in the pop, video and Album of the Year sections. With 23 awards up for grabs, the Queensland Music Awards, run by QMusic, are expected to attract more than 600 music industry identities and fans tonight. The prestigious awards have been running since 2006 and with industry heavyweights including Petrina Convey from Sony Music on the judging panel, they’ve kick-started the careers of many well-known artists including Emma Louise, best known for her song ‘My Head is a Jungle.’ Brisbane Showgrounds General Manager of Venue Sales and Marketing Jago Coyle said it was the first time the Queensland Music Awards had been held at the Royal ICC. “The Brisbane Showgrounds is the perfect venue fit – it has been home to some of the most popular music festivals including Livid, Soundwave, Stereosonic and Laneway for years,” he said. “We’re thrilled to host this event, as it celebrates Queensland music and supports artists and music fans across the state.” The Queensland Music Awards get underway at 6pm. The Brisbane Showgrounds precinct is located just 1.5km from Brisbane’s CBD and is Queensland’s largest indoor / outdoor events site.
    [Show full text]
  • EVENTS OUR CONSULTATION PROCESS with YOU Onemusic Australia Is Consulting with You and Would Like to Hear What You Think
    EVENTS OUR CONSULTATION PROCESS WITH YOU OneMusic Australia is consulting with you and would like to hear what you think. This paper sets out the proposed rates to apply to events and performances where music is used. It covers APRA’s existing rates for National and other Event Promoters and PPCA’s Tariffs B, E2, E4 and X and simplifies those separate licences and schemes by providing a combined approach. It is relevant for concert promoters, event and festival promoters and producers, performance spaces and those running ad hoc events from time to time that are not covered under other OneMusic licence schemes. Some OneMusic licences, such as Places of Interest, Councils, Hotels also cover events, subject to certain thresholds, and for events outside those limits, the rates here apply. You can access information about those licences here. We realise it can be confusing to have to pay music licence fees to two organisations. Starting from mid-2019, OneMusic Australia will be the one organisation for all your music licensing needs, and you’ll be able to pay for your licence online. It’s not easy to build a single licence scheme that suits everyone, so we’ve come up with a proposal which builds on previous discussions with industry and where possible applies the same metrics to the one event. We’d like you to take a look and provide us with your feedback. Live Performance Australia have prepared a summary for their members (June 2019) and you can read this here. This paper covers the proposal for licensing for the following types of events: ■■ Promoted music events and festivals (including free events); ■■ General entertainment events where music is used but not the primary focus (including free events).
    [Show full text]
  • Fitness Centre and Fitness & Wellbeing Instructors
    FITNESS CENTRE AND FITNESS & WELLBEING INSTRUCTORS SIGN UP Licensing Enquiries 1300 162 162 [email protected] onemusic.com.au September 2021 NOW The Fitness Centre and Fitness and Wellbeing Instructors scheme is designed for our music used in Your licence explained a facility or when instructing clients in fitness, toning or strengthening. All Inclusive OR Background music Music in Classes You may have our music or music videos playing in go to page 2 for Location go to page 3 your gym, yoga studio, barre or Pilates studio, or go to page 3 perhaps you have an outdoor training session, boot camp or cross fit business or indoor aqua fitness For examples of how this licence works in practice, see page 7. sessions where our music is played. Your Zumba or For a guide on how to complete your Licence Agreement go to circuit class is likely to have our workout music, just as onemusic.com.au/easy our motivational music is often played in martial arts and boxing training. Where that music is controlled Draw on the power of music by OneMusic Australia, this scheme will cover all of these uses. 10% reduced feeling of exertion when music is listened to versus when no music playing. (1) Why do I need a OneMusic licence? During yoga and pilates participants prefer Shows your organisation respects and supports a moderate level of complexity in music (a songwriters and recording artists, our cultural simple rhythm and a lack of orchestration). (2) creators. Aerobics participants prefer simple (not 1 (2) Permission. If you use music that is complex) music.
    [Show full text]
  • Annual Transparency Report APRA Consolidated for the Year Ended 30 June 2020
    Annual Transparency Report APRA Consolidated for the year ended 30 June 2020 (i) (a) Total rights revenue per type of use $ Broadcasting 101,990,983 Digital 111,264,438 General Revenue 71,790,308 Educational 4,086,381 International 53,026,334 342,158,444 (c) Income on investment of rights revenue $ Interest 928,952 All interest income is distributed to rights holders. (ii) (a) Total operating costs $ Total expenses 65,944,523 (b) Total remuneration to board directors $ Directors Fees 631,115 (c) Cost to revenue ratio* 15.48% *For the purposes of calculating this ratio AMCOS is treated as a business unit within APRA and the costs of that business unit are offset by that manangement fee received. 1 (iii) (a) Total revenue attributed to rights holders $ Total revenue 343,280,631 Total expenses* 53,154,083 Net revenue owing to rights holders 290,126,548 *Total expenses include the value of management fee revenue netted off against the expenses incurred in earning that management fee revenue. It is the net surplus or deficit which is attributed to rights holders. (b) Total amount paid to rights holders $ Australian Writers 74,201,102 Australian Publishers 105,382,770 New Zealand Writers 8,478,483 New Zealand Publishers 160,176 Other rights holders 14,594,925 International affiliates 101,182,646 Total amount paid to rights holders 304,000,103 (c) Total amount attributed but not distributed $ Unidentified amounts and amounts in dispute 18,332,940 Amounts awaiting distribution 138,698,725 Total amount not distributed 157,031,666 2 (iv) Information about undistributed funds, including: (a) reasons why funds remain undistributed At the end of any financial year APRA will always have undistributed royalties.
    [Show full text]