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COPYRIGHT INFRINGEMENT AFTER THE US/AUSTRALIA FREE TRADE AGREEMENT

Australia’s signing of the US/Australia Free Trade Agreement (FTA) in theory renders Australian citizens susceptible to extradition and prosecution in the United States for copyright infringement carried out on Australian soil. These steps taken by the Howard Government now signify that Australians may be liable for breaches of copyright in both the US and Australian jurisdictions. That being said, the FTA has brought about discussion on issues such as the anticipated doctrine of ‘fair use’, the ratification of addition limits on internet service provider (ISP) liability and criminal and civil enforcement of copyright infringement.

Hew Griffiths, an Australian, is the first person in the world to be extradited and criminally prosecuted in the US for copyright infringement performed in another country. This landmark decision by the Australian government has been heavily criticized both domestically and internationally. Griffiths, who helped to steal an estimated $60 million in on-line copyrighted material, is being called the ‘David Hicks’ of intellectual property world. Eight of his British accomplices in the software pirate ring known as “DrinkorDie” were not extradited, but rather prosecuted under British law. Judge Jacobson of the Federal Court who approved the extradition found that all that was required to permit the extradition was that the alleged conduct would have been illegal had it taken place in NSW.

In an article in the Australian Law Journal, Chief Justice Young of Equity in NSW stated that while international copyright infringement is a serious problem, “there is also the consideration that a country must protect its nationals from being removed from their homeland to a foreign country merely because the commercial interests of that foreign country are claimed to have been affected by the person's behaviour in Australia."

Arguably, the correct jurisdiction to hear Griffiths’ case would have been Australia, since this is where the infringement took place, however, when it comes to online infringement with its instantaneously global reach, it seems that jurisdictional issues will be broadly interpreted by the Federal Court. As a result of Griffiths’ extradition he was sentenced on 22 June 2007 in a Virginia Court to 15 months jail and fined more than $700,000.

There is nothing in the FTA that provides for extradition of nationals from one country to the other country to face copyright infringement charges. The only clauses that offer any indication of the treatment of copyright infringers and protection of copyright owners is under the heading of National Treatment. Under the National Treatment clauses Australia and the US must afford copyright owners protection no less favourable that it does to its own nationals. This enables Australian copyright owners the right to sue for infringement in the US based on an understanding that if such behaviour occurred in Australia then it would be infringing.  Australians suing in the US will have to sue under specific US legislation, but the intended effect of this clause is to harmonize the two countries copyright laws.

For copyright users the FTA does not mention the implementation into Australian law of “fair use” provisions in existence in the United States. However, the Attorney-General’s department is currently soliciting submissions in respect of “fair use” provisions, which will hopefully see protection for users regarding the following:

Other FTA required amendments to Australian copyright law include limitations on ISP liability. While the Copyright Amendment (Digital Agenda) Act 2000 does offer protection to ISPs, the FTA requires that a court should not be able to give monetary relief against an ISP, and that the court’s ability to compel or restrain certain ISP actions, such as terminating accounts or disabling access to infringing copyright material, is to be restricted.

The FTA also requires Australia to strengthen its enforcement of copyright particularly when dealing with large scale internet piracy schemes. Firstly, the new criminal offences which aim to protect copyright owners from peer-to-peer file sharing sites include:

The civil remedies provided by the FTA, which again aim to address internet piracy, requires greater power to be given to the courts and ultimately the rights holder, including provision for orders for seizure and destruction of suspected counterfeit goods and related items without compensation.

If you have any queries in relation to the above or to copyright law in general, please do not hesitate to contact us.