Copyright, Crime And Computers: New Legislative Frameworks For Intellectual Property Rights Enforcement

AuthorGregor Urbas
PositionAustralian National University, Canberra, Australia
Pages11-26
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COPYRIGHT, CRIME AND COMPUTERS: NEW LEGISLATIVE
FRAMEWORKS FOR INTELLECTUAL PROPERTY RIGHTS
ENFORCEMENT
Gregor Urbas
Australian National University
Canberra, Australia
urbasg@law.anu.edu.au
Abstract: This paper considers intellectual property rig hts (IPR) enforcement from the
perspective of criminal law, and in particular, drawing on recent Australian legislative reforms
concerning copyright, cybercrime, co vert investigations, mutual assistance and e xtradition,
prosecution and sentencing options, as well as proceeds o f crime recovery. The complex
interaction of these laws suggests that the field of IPR enforcement offers numerous investigative,
prosecutorial and judicial o ptions beyond those traditionally associated with copy right
infringement. Cases d iscussed include several prosecutions of file-sharing website operators, and
the extradition from Au stralia of a suspect in an international online piracy group p rosecution led
by the United States Department of Justice.
1. Introduction
Intellectual property (IPR) e nforcement has been transformed in the past ten to fifteen years by a c ombination of
technological, societal and legal developments. Most significantl y, the introduction and widespread adoption of
the Internet as a basis for communication and dissemination of information, entertainment and products has
resulted in a global community of file-share rs, including those who deliberately or recklessly trade in material
that i nfringes copyright or other forms of IPR. This activity has bee n facilitated by a number of online file-
sharing services and websites, some of which have featured prominently in civil and criminal litigation in a
range of countries, for example, in litigation involving Napster, Grokster, Kazaa, Bit-torrent and The Pirate Bay.
While most ind ividual file-sharers do not consciously engage in acts of piracy o r counterfeiting, their aggregate
activity and effect on music, film and games software markets across the world can represent significant losses,
which can result in ci vil and criminal liabilit y with significant damages being awarded or penalties imposed
(AIC 2008; Andrés 2006; Dejean 2009; Siwek 2007; Zentner 2006) .
Over time, legal liability has been extended through a combination of legislative reforms and judicial
interpretation, beyond the pool of direct sharers of infringing content to those groups and businesses that provide
Internet-related services. In some cases, such as where clearly illegal conspiracies to make illicit gains from
piracy or counterfeiting are involved, the imposition of criminal or civil liability is doubtless warranted.
However, some enforcement actions leading to massive mo netary penalties being awarded against individual
file-sharers, or the deployment of criminal justice mechanisms such as search and seiz ure, arrest and prosecution
and even extradition have attracted widespread concern and criticism (Barker 2004; Manjoo 2001; Richard son
2002; Weinstein and Wild 2008). Intermediaries such as Internet Content Host (ICHs) and Internet Service
Providers (ISP s) have also found t hemselves potentiall y liable for failure to police and pr event online
infringements by their customers, with so me countries legislatively imposing restrictive ‘take-down notice’ and
‘three strikes’ regimes aimed at curbing online IPR violations (Lambrick 2009; Wan 2010; Urbas and Fouracre
2010).
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The recent history of IPR e nforcement has thus been marked by an increasingly co mplex array of technical
and legal interactions, with resulting uncertainty about the ways in which copyright and trade mark law can and
should interact with telecommunications law and regulation, criminal law and procedure, including recently
enacted computer offences. The following analysis explores this evol ving landscape by working through
legislation and case examples in Australia, though it should be observed that the copyright, computer crime and
criminal procedura l laws under consideration are framed by international agreements and harmonisation
processes, and therefore the analysis should be of relevance to those working in other jurisdictions. Indeed, as
will emerge, much recent IPR enforcement activit y has necessarily taken on a multinationa l aspect in response to
the global trend in online piracy and counter feiting activity. This is particularly evident i n the emergence of a
landmark extradition case involving an Australian member of an internationa l online piracy group, who
ultimately was required to face justice in the United States legal system.
2. Terminological Background
International agreements, and to a varying extent domestic legislation, provide the technical voca bulary for any
discussion of IPR enforcement. Footnote 14 to Article 51 of the World Trade Organisation ’s Trade-Related
Aspects of Intellectual Property Rights (TRIPs) agreement pro vides (WTO 2010):
(a) "counterfeit trademark goods" shall mean any goods, including packaging, bearing without
authorisation a trademark which is identical to the trademark validl y registered in respect of
such goods, or which cannot be distinguished in it s essential aspects from such a trademark, and
which thereby infringes the rights of the owner of the trademark in question under the law of
the country of importation;
(b) "pirated copyright goods" shall mean any goods which are copies made without the consent
of the right holder or person duly authorised by the right holder in the country of production and
which are made directly or i ndirectly from an article where the making of that cop y would have
constituted an infringement of a copyright or a related right under the law of the country of
importation.
By extension, the production, distribution, sale and other dealings in pirated or counterfeit goods are widely
referred to, respectively, as ‘piracy’ and ‘counterfeiting’ (see also the European Directive on Enforcement of
Intellectual Property Rights 2004). The TRIPs p rovisions detail enforcement measures that member states must
adopt by way o f civil and administrative procedures and remedies, border controls, and criminal procedures and
penalties applied to counterfeiting and piracy. Note that the categories are not mutually exclusive, as a pirated
article may also be counter feit in the sense of being deceptively labelled a nd packaged. Accordingly, the
production, importation, distribution and sale of pirated copies of copyright material may also involve breaches
of trademark or other i ntellectual property rights, commercial dealing and import-export laws, and consumer
protection regulations (Urbas 2000a).
Domestic intellectual property legislation does not necessarily use the TRIPs terminology. In Australia, for
example, although the terms ‘piracy’ and ‘pirated’ appeared in an early versions of the Copyright Act, more
recent formulations refer to ‘infringement’ and ‘infringing works’ (Kelcey 1995: 232; Smith 19 97; Urbas 2000a
and 2000b). Nonetheless, the ‘piracy’ terminology is well-established in the copyright world, particularly in
academic discussions (Hughes 2005; Hinduja 2006 ; Kreie and Cronan 2002), among industr y groups
representing copyright owners such as t he Business Software Alliance (BSA 2009), Record ing Industry
Association of America (RIIA 2010) and Music Industr y Piracy Investigations (MIPI 2010), and also so me file-
sharing sites such as ‘Pirates With Attitude’ based in the United States or ‘The Pirate Bay’ operating in Sweden
(Andersson 2009; Goldman 2004; Lewen 2008; Urbas and Fouracre 2 010).

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