The case for criminalizing copyright piracy on a commercial scale and the appropriate level of penalties: an assessment of the international standard for criminal enforcement measures and its implementation in Australian and Malaysian copyright laws

The establishment of criminal offences for copyright infringements has a long history under certain national copyright laws, including the laws of Australia and Malaysia. A new stage in the evolution of criminal laws for copyright infringements was, however, reached in the mid-1990s with the introduction of the first international standard for criminal enforcement measures, in the form of Article 61 of the Trade-Related Aspects of Intellectual Property Rights Agreement (the ‘TRIPS Agreement’). The Article 61 standard, which is the current international standard, criminalizes, among other things, wilful copyright piracy on a commercial scale and compels WTO Members to impose ‘imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity.’ The Article 61 standard, however, could potentially be eclipsed by new, and potentially more severe, standards of criminal enforcement measures which are being proposed and negotiated between countries to be included in emerging multilateral treaties, namely the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership Agreement. The attempts to strengthen the international standard for criminal enforcement measures have resulted in considerable controversy, partly due to the expansion of the scope of conduct being criminalized. The recent and ongoing controversies concerning the application of the criminal law to copyright infringements are related to more general controversies regarding the purpose and proper scope of copyright protection, especially in the digital environment. In view of the apparent movement towards increasingly prescriptive international standards of criminal enforcement measures, and bearing in mind that copyright infringements have historically been essentially regarded as private wrongs, there is an urgent need for a principled analysis of the application of the criminal law to certain forms of copyright infringement. This thesis examines this general issue by addressing two key research problems: • whether the criminalization of copyright piracy on a commercial scale is legitimate; and • if so, what are the objectives of imposing criminal sanctions and, in light of the objectives, what are the appropriate levels of criminal punishment for copyright piracy? Although the subject of much current debate, these issues have been under-researched in the academic literature. In relation to the first research problem, applying Joel Feinberg’s version of the Harm Principle, the thesis tentatively concludes that there is a prima facie case for criminalizing intentional or reckless acts of copyright piracy on a commercial scale. In relation to the second research problem, the thesis establishes that the overarching objective of establishing criminal penalties in Article 61 is to deter serious copyright infringements, essentially meaning intentional piracy on a commercial scale. In accordance with this objective, the penalties set by national enforcement regimes should be assessed by reference to the principles arising from the ‘deterrence theory’ of criminal punishment. Focusing on the Australian and Malaysian penal provisions, the thesis assesses whether the level of penalties set in the relevant criminal provisions comply with deterrence theory, in that they are sufficiently severe to deter infringements, but nevertheless proportionate. Accepting that the Article 61 standard requires that the penalties to be made available must be consistent with the ‘level of penalties’ applied to ‘crimes of a corresponding gravity’, and that most commentators on the TRIPS Agreement agree that offences for non-violent theft are ‘crimes of a corresponding gravity’, the thesis uses the penalties set for such offences as benchmarks for assessing the penalties set by representative criminal provisions under the relevant national copyright laws. The thesis demonstrates that the penalties set in the Australian and Malaysian penal provisions prima facie comply with the current TRIPS standard, which is inherently flexible. Further empirical research on factors such as the current enforcement and sentencing practices, however, is necessary to arrive at a definitive conclusion on the extent to which the criminal penalties set under Australian and Malaysian law represent an effective, but proportionate deterrent. Reflecting the complexity of the issues in this controversial area, many of the conclusions reached in the thesis are tentative and qualified. Nevertheless, the analysis of the two key research problems undertaken in the thesis represents an advance over the extant literature by establishing a rigorous conceptual framework for addressing the two key research problems, which hopefully may guide future research in this area. The law in the thesis is as at 23 June 2014