Is Pirating a Movie or Television Show a Criminal Offence?

It was reported last year that one in four Australians engage in some form of ‘digital piracy’, gaining access to films or television shows that are either not yet available in the country, or are only accessible via paid subscription services such as Foxtel or Netflix.

But are people putting themselves at risk of being charged with a criminal offence?

Here’s an outline of the rules regarding digital piracy in Australia, as well as criminal offences that may apply.

What is digital piracy?

Digital piracy refers to refers to the illegal copying or distribution of copyrighted material via the Internet. One of the most common forms of digital piracy is to obtain an illegal copy of a film or tv-show via a ‘torrent’ – a form of peer-to-peer file sharing which allows rapid access to a variety of media works.

‘Copyright’ refers to the exclusive rights held by creators and owners of unique works of art or media. Section 86 Copyright Act 1968 (Cth) notes that, in relation to films, copyright provides hold an exclusive right to do all of the following:

•  to make a copy of the film;
•  to cause the film, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;
•  to communicate the film to the public.

In relation to television shows (including shows on streaming platforms), section 87 of the Act provides that copyright owners hold an exclusive right:

• in the case of a television broadcast in so far as it consists of visual images–to make a cinematograph film of the broadcast, or a copy of such a film;
• in the case of a sound broadcast, or of a television broadcast in so far as it consists of sounds–to make a sound recording of the broadcast, or a copy of such a sound recording; and
• in the case of a television broadcast or of a sound broadcast–to re-broadcast it or communicate it to the public otherwise than by broadcasting it.

Doing any of the above in relation to films or tv-shows without being the holder of copyright could constitute an act of copyright infringement in Australia.

Section 38 of the Act makes clear that sale and other commercial dealings of media, where you do not hold the copyright, will also constitute copyright infringement. Including if someone:

• sells, lets for hire, or by way of trade offers or exposes for sale or hire, an article; or
• by way of trade exhibits an article in public;

Copyright infringement could give rise to a civil action (where a copyright holder sues you for infringement) or could constitute a criminal offence in some circumstances.

Civil actions for infringement of copyright

Any person who copies, communicates or exhibits a film or tv-show without the permission of the copyright holder will have infringed copyright and is at risk of civil action.

Civil actions do not result in a criminal prosecution or criminal history, but can be quite costly. Civil actions are also not just limited to commercial dealings with copyrighted material and would apply to individuals who download a film illegally (such as through torrenting software).

If successful in taking a civil action against a person for copyright infringement, the consequences would likely be an order for ‘damages’ or financial compensation. In determining the appropriate remedies for copyright infringement, section 115 of the Act notes that the court should take into account the following:

• the flagrancy of the infringement; and
• the need to deter similar infringements of copyright; and
• the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff’s copyright; and
•  whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form; and
• any benefit shown to have accrued to the defendant by reason of the infringement; and
• all other relevant matters;

In Australia, major movie studios have attempted to sue individuals for copyright infringement for privately torrenting films. However, internet service providers have been very reluctant to share identifying details which would allow this to occur.

In the United States, a woman in Minnesota was forced to pay a $220,000 fine for 24 illegally downloaded songs after major music studios successfully sued her for copyright infringement.

Anyone who torrents or downloads films or tv-shows contrary to copyright laws, should be aware that they are putting themselves at risk of being sued for a substantial amount of money.

Offences related to commercial infringement of copyright

The Copyright Act 1968 (Cth) outlines a number of criminal offences related to copyright infringement, where some commercial motivation is involved.

Under section 132AC(1) of the Act, a person commits an offence if:

• the person engages in conduct; and
• the conduct results in one or more infringements of the copyright in a work or other subject-matter; and
• the infringement or infringements have a substantial prejudicial impact on the owner of the copyright; and
• the infringement or infringements occur on a commercial scale.

This offence carries a maximum penalty of a fine of 550 penalty units ($172,150) or imprisonment for 5 years or both. A corporation may be fined up to five times more than the prescribed fine if found guilty of this offence.

A summary offence exists under 132AC(3) of the Act, if the person is negligent to the commercial scale of the offence, and carries a maximum penalty of a fine of 120 penalty units ($37,560) or imprisonment for 2 years or both

Infringements will be said to occur on ‘commercial scale’ by taking into account the volume and value of any articles that are infringing copies that constitute the infringement or infringements and any other relevant matter.

Other relevant offences related to commercial infringement of copyright include:

• Making an infringing copy with the intention of selling, letting or otherwise obtaining a commercial advantage or profit under section 132AD of the Act.
• Selling or hiring an infringing copy under section 132AE of the Act.
• Offering an infringing copy for sale or hire under section 132AF of the Act.
• Distributing an infringing copy under section 132AI of the Act.
• Possessing an infringing copy with the intention to sell, let or otherwise offer or expose it to sale or hire under section 132AJ of the Act.

All of the above offences carry a maximum penalty of 550 penalty units ($172,150) or imprisonment for 5 years or both for an indictable offence and a fine of 120 penalty units ($37,560) or imprisonment for 2 years or both for a summary version of the offence.

A strict liability offence also applies in many cases where a person is not aware they are dealing with copyright infringing material, carrying a maximum penalty of a fine off 60 penalty units ($18,780).

All of the above fines can be increased up to five times the stated amount if the offending occurs by a corporation.

Is pirating a film or tv-show for personal use a crime in Australia?

Although an individuals pirating a film or tv-show for personal use are still liable for civil actions on the basis of copyright infringement, there is no criminal offence  in Australia which applies to pirating a film or tv-show for personal use or viewing.

Defences

A number of statutory defences apply to allegations of copyright infringement. These can include:

• Fair dealing with the copyrighted work for research, study, criticism, review, parody, satire or reporting news.
• Temporary reproductions of works for the purposes of communication or technical uses.
• Dealing with the copyrighted material for educational, healthcare or other public purposes.
• Dealing with copyrighted material for use of libraries, archives and key cultural institutions;
• Dealing with copyrights material for law enforcement purposes.

Going to court over digital piracy?

If you are you going to court to contest an offence related to digital piracy  call Sydney Criminal Lawyers anytime on 9261 8881 to arrange a free first conference during which one of our experienced defence lawyers will assess the case, advise you of your options and the best way forward, and fight for the optimal outcome.