Criminal Law

Can copyright infringement attract criminal prosecution?

Published in: December 2017

One of the major issues facing owners of copyright in the digital age is the ease in which intellectual property can be distributed, and disseminated without the permission of the copyright holder. Sure, online copyright infringers doesn’t exactly conjure up an image of hardened criminality, however, criminal sanctions are still possible under the provisions found under the Copyright Act 1968 (Cth) (the Act). However, copyright holders generally utilise civil remedies and although criminal prosecutions for copyright violations is rare – it still is possible. 

Intellectual property criminal offences

There are four categories of offences that can be found in the Act, which are:

  • offences concerning commercial dealing (eg commercial level production of infringing copies of music or movies for sale to the public);
  • offences concerning digital rights management (DRM) and similar electronic protection mechanisms (eg breaking software copyright protection or gaining access to pay television through a decryption device);
  • offences concerning sound recordings, public performances and broadcasts (eg producing unauthorised copies of concerts for sale to the public); and
  • miscellaneous specialised offences.

Criminal prosecution for copyright offences

For the most part, copyright matters involving criminal sanctions usually fall into the category of offences involving commercial dealing, where either an individual or business has produced copyrighted media with the intention of generating a profit, without the permission of the copyright holder.

Due to the particular nature of matters involving copyright infringement, it’s not unusual for owners to play a visible role in the collecting of evidence for criminal prosecutions by purchasing the violating material, then passing on the evidence to the authorities.

Copyright proceedings in court

Looking towards case law, the courts have usually applied a factual presumption of the existence of copyright, without the requirement of proving ownership under certain circumstances. Problems can arise with this particular approach by the courts in cases where the copyright is close to the statutory expiration date. However, defendants may still be able to rebut the presumption if the circumstances allow.

It is open to a copyright owner to pursue both a civil action, and to request a prosecution for a criminal offence – meaning that the criminal offences are not an alternative to civil remedies. Part of this policy may be traced to the traditional concern of the courts in deterring copyright-related crime.

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