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Software Licensing & Copyright Infringement – Director Liability

The Copyright Act 1968 was amended by Copyright Amendment (Digital Agenda) Act 2000 to introduce changes to cover digital reproduction and strengthening copyright protection in Australia.

The amendments came into force on 4 March 2001.

Section 132 (5B) makes it an offence to manufacture or distribute a device that circumvents copyright protection. Section 132 (6A) states that a person who contravenes s.132 (5B) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.

1 Penalty unit = $100

550 x $100 = $55,000

55,000 x 10% GST = $60,500

Section 4B(3) Crimes Act 1914 states a corporation may be fined up to 5 times the amount of the maximum fine:

$60,500 x 5 = $302,500

Section 115 deals with actions for copyright infringements. The section states that the relief that a court may grant in an action for an infringement of copyright includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits. The section does not indicate a maximum amount, which may be awarded for damages and therefore the claim is unlimited.

Company directors may also be personally liable if they are the person referred to in s132 (5B). This section states that the required mental element for this offence is that a person knows, or is reckless as to whether; the device will be used to circumvent, or facilitate the circumvention of, a technological protection measure. Therefore a director need not actual know that an infringement is taking place; recklessness is enough to bring it under this section. Such a copyright infringement can lead to a summary conviction by a personal fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.

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