ACTA: An Attack on Common Sense?

ACTA: An Attack on Common Sense?

Brendan Scott, February 09

James Love has published some details about the current ACTA negotiations.   Copyright ideologues have been (successfully) pushing for extreme legislation for several years.  Each time new legislation is passed, it is only a stepping stone towards even more extreme legislation.  Any reasonable person picked up from the 70s and dropped in the 00s would be stunned by how completely copyright ideology has infected the legislative process.   Indeed, by germinating in international fora, it subverts the process.  Copyright ideologues use international treaties to enforce or extend domestic legislation, bypassing local legislatures and then requiring them to enact the provisions.  Any time anyone objects about the disparity between the ideology and reality, they are slapped down with “International Obligations”.

In this post I’d like to focus on just one aspects of the negotiations, the criminalisation of non-criminal copying.   Love says:

“The U.S. and Japan have proposed that willful trademark and copyright infringement on a commercial scale be subject to criminal sanctions, including infringement that has ‘no direct or indirect motivation of financial gain.’ This will further:

‘include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistent with a policy of removing[1] the monetary incentive of the infringer'”

Criminal sanctions for copyright infringement have always been tied to infringement for the purpose of sale of the infringing article.  This provides an understandable  ground rule for determining what is and what is not criminal (ie “was this copy made for the purpose of sale?”).  These new provisions would convert any infringing activity into a crime based (apparently) on the number of times it has occurred.   Exactly what will constitute “commercial scale” is anyone’s guess.  However, is it unreasonable to assume that any copies beyond what is absolutely necessary for a person’s own use, with no allowance for ordinary convenience will be liable to being classified as being of a commercial scale?[2]  If you make a copy for the bedroom and a copy for the car, will you be skirting “commercial scale”?

What about Willful?

In theory the wilfulness requirement could limit the scope of the provision.  However, that depends on exactly what is read into willful.  My Australian Legal Dictionary has this to say about willful:

In criminal law, a term without fixed meaning connoting knowledge and intention to achieve some purpose… To prove an act was done wilfully requires proof of an intention to commit the act or recklessness as to the consequences of an intentional act

And in the US, my Black’s says (of willfulness):

2.  The voluntary, intentional violation or disregard of a known legal duty

and of willful infringement:

An intentional and deliberate infringement of another person’s intellectual property

On one view of the world, this would require that the defendant had been presented with evidence that copyright was valid and subsisting and that the intended course of action would result in an infringement (potentially “infringement on a commercial scale”) and having gone on regardless.    Given past history, I will take a punt that what instead will happen is that everything that is reasonable for defendants to have the prosecution prove in this offence will, in fact, be placed on the defendants who’ll bear the onus of disproving them.  Prime suspects include imputing knowledge of both the subsistence of copyright (probably based on the assertions of ownership on packaging material) and that the action will be infringing (/infringing on a commercial scale).    It would be nice to dream, but I suspect that “willfull” will not, in practice, have any effect in reducing the overbroad scope of this provision (indeed, I have proof… – see “The Future is Now” below)

Too Much!

Imagine other crimes in this mold: watching Hollywood movies -> not a crime; watching Hollywood movies “too much”  -> crime.   One might object that watching movies is not itself actionable (not yet, anyway).   This doesn’t affect the argument.  For example, consider the crime: breaching your loan/other contract  ->   not a crime; breaching your loan/other contract “too much” -> crime.   Imagine how many former homeowners would now be in the slammer?

It’s probably a crime of Strict Liability

What is unstated here is that a likely consequence of this is that in practice the crime will be one of strict liability.  Normally actions are not themselves criminal unless they are accompanied by the requisite intent – and conversely having the requisite intent will not normally be a crime in the absence of some prohibited action (in Latin actus reus non facit reum nisi mens sit rea).  However, the only action constituting the crime here will be the making of a certain number of copies (willfully – see above).[3]  Intention will resolve to whether or not the person meant to make those copies, or whether it was some sort of accident.

Piece de Resistance – The Future Is Now

For those of you who could not believe any country would enact such an extreme provision, an equivalent provision was included in the Australia-US Free Trade Agreement.[4]  It has resulted in this section being added to the Copyright Act:

132AC (1)  Copyright Act 1968
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in one or more infringements of the copyright in a work or other subject-matter; and
(c) the infringement or infringements have a substantial prejudicial impact on the owner of the copyright; and
(d) the infringement or infringements occur on a commercial scale.

As if that wasn’t enough section 132AC(3) creates the same offence with a negligence component:

A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in one or more infringements of the copyright in a work or other subject-matter; and
(c) the infringement or infringements have a substantial prejudicial impact on the owner of the copyright and the
person is negligent as to that fact; and
(d) the infringement or infringements occur on a commercial scale and the person is negligent as to that fact.

If you are corporate counsel and you are not gobsmacked by this section, you probably haven’t read it properly.  This provision seems to imply you can go to jail[5] if you’re negligent when you give advice on whether some activity infringes copyright.   If you are the manager of the production line of an embedded device and aren’t gobsmacked, you probably haven’t read it properly.  It seems to imply you’ll go to jail if you’re negligent in implementing the licensing contract that your company signed.  If you’re any kind of manager involved in the reproduction of anything, you should be gobsmacked (wherever you are, but particularly if you’re in Australia).

Indeed, the AUSFTA has exactly the provisions necessary to remove any meaning from “willful” (see section 17.11.4 here).  If anyone wants to know what will be in ACTA and how it will be expected to be implemented in local legislation, just look at Chapter 17 of the AUSFTA and, of course, our Copyright Act.

ACTA and Ideology

The world is currently racked by the Global Financial Crisis primarily because the banking sector allowed theory and ideology to obscure common sense.   The ACTA suffers from the same problem of ideology displacing reality.


[1] How you can remove the monetary incentive of an infringer who has “no direct or indirect motivation of financial gain” is something of a mystery.  It simply demonstrates how ideology rather than common sense is the motivating factor here.

[2] During the negotiations in late 2006(?) on Australia’s final implementation of the AUSFTA the question of region locking was canvassed during the [senate(?)] hearings.  The argument was that if region locking was prohibited, then Australians would be restricted from playing DVDs they had purchased overseas.  The response from “the industry” was that if Australians wanted to do this they could buy a separate DVD player for each region code.   As these negotiations have shifted into the realm of ideology any application of common sense appears quite inappropriate.

[3]   Indeed, it is a a safe bet that the ACTA will criminalise the making of the copies even if you destroy them immediately afterwards – something that anyone providing any sort of proxying service would be well advised to keep in mind.  There is an ideology at stake here don’t you know.

[4] The text is (link – scroll down to 17.11.26):

26. (a) Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Wilful copyright piracy on a commercial scale includes:

(i) significant wilful infringements of copyright, that have no direct or indirect motivation of financial gain; and

(ii) wilful infringements for the purposes of commercial advantage or financial gain.

[5] Sorry, gaol.


9 Responses to “ACTA: An Attack on Common Sense?”

  1. 1 Brent 18 February 2009 at 7:00 am

    Am I just paranoid or is there a plan afoot to make everyone a criminal by default? What a great way to control the population when you know that you can arrest anyone at anytime, because it is most probable that you have broken the law.

  2. 2 Jim 18 February 2009 at 10:07 pm

    Are you aware of any organized opposition to ACTA? Or at least a move to bring it out in the open where it can be discussed? In the U.S., contact with my Congressional representatives has not been hopeful.

  3. 3 brendanscott 19 February 2009 at 7:50 am

    Many years ago I went to a meeting on the AUSFTA. The ARIA (like the AU version of RIAA) assured everyone that we didn’t need to worry about the provisions in the AUSFTA because they would only be used against “bad people”. He knew the legislation was unprincipled (it was a roomful of lawyers), so felt the need to defend it and that was the best he could come up with.

    There are some groups springing up. I think the general populace assume it will be dead letter (ie copying is illegal, but everyone does it). KEI (see above), FSF and EFF are good places to start.

  4. 4 @jhawtin 19 February 2009 at 10:56 am

    Great write up thanks. James Love does great work too.

  5. 5 Mark Harris 26 February 2009 at 12:46 pm

    Good stuff, Brendan. You may have noticed that in NZ we’re struggling with s92A of the Copyright Act. Just recently, it’s come to light that part of the impetus for this legislation was the possibility of an FTA. It does seem as if the US industry is intent on exporting its ideology by force.

  6. 6 Mark Harris 25 July 2009 at 6:23 pm

    I see you’re getting hit with a lot of comment spam. Were you aware that, if one has ticked the box that says “Notify me of follow-up comments via email” that the spams are resent, even if blocked by WordPress? Not a huge issue, but I thought you’d like to know.

  7. 7 mrflibble4747 27 March 2010 at 9:14 pm

    In the novel by George Orwell (1984)it’s called “Thought Crime”.

  1. 1 Copyright Pirates in SA Police Force « Brendan Scott’s Weblog Trackback on 5 March 2009 at 11:34 pm
  2. 2 Brendan’s Adventures in Amsterdam « Brendan Scott’s Weblog Trackback on 4 May 2009 at 5:34 pm

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