Section 132AN [see Appendix at page 341] There are two offences under this section, an indictable offence and a summary offence, which are both concerned with infringing performances of literary, dramatic and musical works. Both offences contain three identical physical elements and two identical mental elements. The only point of difference between the two offences is the level of culpability in the physical element that “the performance infringes copyright in the work”.640 The remaining mental elements are not specified by the section, so once again s 5.6 of The Criminal Code 1995 (Cth)641 provides the fault elements.
[2.1.1] “the performance infringes copyright in the work”
A performance will infringe copyright642 in a literary, dramatic and musical work if it is performed without the licence of the owner of the copyright.643 In Australia the licensing of musical works is managed by a collecting society, the Australasian Performing Right Association Limited (“APRA”).644 APRA issues licences to venues for live performances of musical works, and collects royalties on behalf of its own members and on behalf of members of affiliated foreign collecting societies. To become a member of APRA, the owner of the copyright in a work must assign the right to publicly
640 Cf Copyright Act 1968 (Cth) ss 132AN(1)(c) and (3)(c)
641 Criminal Code Act 1995 (Cth)
642 Copyright Act 1968 (Cth) s 31(1)(iii) establishes the right to perform the work.
643 Copyright Act 1968 (Cth) s 36(1)
644 See http://www.apra-amcos.com.au/default.aspx (Accessed 29 September 2010)
perform the work to APRA.645 APRA does not provide licences for grand right performances646 or for literary or dramatic performances. In these cases, individual licences must be sought from individual copyright owners. This is not such an arduous task as it may sound, since there are a limited number of publishers who control a large number of musical, literary and dramatic works.647
The person responsible for acquiring the licence to perform will vary according to the particular type of licence required. In the case of musical works licensed by APRA, it is only the venue provider who is capable of applying for, and being granted, a licence for the performance of musical works.648 No licence exists for performers. This puts the performer and their agents in the difficult position of potentially being liable for infringing the right of performance, without the ability to obtain a licence.
For artists who have assigned their performance rights to APRA, this would include performances of their own compositions.
In terms of criminal liability, if a performer gives a performance that infringes copyright, then they will have undoubtedly have completed the physical element of both offences. The fault element for this element is either recklessness649 for the indictable offence or negligence650 for the summary offence. Whether either of these standards of culpability would be applicable would be determined by the facts of any case brought, but it seems likely that performers will be in an inferior position to venue holders to correctly assess the risk that the performance is unlicensed. The same would be true of actors who perform dramatic or literary works, since the performance licence is likely to be arranged by a third party such as a producer or director. The defence of mistake of fact651 would be open for the indictable offence if the performer was under the mistaken belief that the venue holder or another third party had obtained a licence for the performance. Additionally, it is possible that the chain of causation could be broken between the conduct (performing) and the result (it is an infringing performance) by an omission by a third party to obtain the licence.
645 See http://www.apra-amcos.com.au/musiccreators/managingyourrights.aspx (Accessed 29 September 2010)
646 See http://www.apra-amcos.com.au/APRA/MusicConsumers/MusicinBusiness/MusicinTheatre.aspx (Accessed 29 September 2010)
647 See for example: Dominie Pty Ltd, Hal Leonard Australia, Tams-Whitmark Music Library Inc, Origin Theatrical, David Spicer Productions and Warner/Chappell Music.
648 See
http://www.apra-amcos.com.au/MusicConsumers/Findalicencetosuityourneeds/Performplaymusicinabusinessorganization.aspx (Accessed 29 September 2010)
649 Criminal Code Act 1995 (Cth) sch 1 s 5.6(2)
650 Copyright Act 1968 (Cth) s 132AN(3)(c)
651 Criminal Code Act 1995 (Cth) sch 1 s 9.1
[2.1.2] “causes a literary, dramatic or musical work to be performed”
Both offences require that the person “causes a literary, dramatic or musical work to be performed”.
Since no fault element is unspecified, and does not state the offence is a strict liability offence, the fault element must be supplied by s 5.6 of the Criminal Code Act 1995 (Cth). The question that this raises, in relation to this particular element of the offence, is one of the characterisation of the element, which will affect the level of culpability the element will attract according to s 5.6, as illustrated in the tables below.652
Table 2 Incorrect Interpretation of the Fault Elements in s 132AN
Characterisation of Physical Elements Criminal Code Application
Fault Element
Result Cause a performance of a
literary, dramatic or musical work to be performed
s 5.6(2) applies Recklessness as to the result a literary, dramatic or musical work will be performed by doing an act or creating a state of affairs
Circumstance In public at a place of public entertainment
s 5.6(2) applies Recklessness as to the nature and location of the performance
Result Performance infringes copyright in the work
s 5.6(2) applies Recklessness as to the result that the performance will infringe copyright
Table 2 above illustrates the culpability for the indictable offence if the phrase “causes a literary, dramatic or musical work to be performed” was taken to consist only of a result. However, the analysis this illustrates is problematic because a result can only occur through some sort of conduct.
Since some sort of causal link must be shown to have caused the result, a physical element of conduct must be implied in the offence.653 Section 5.6(1) of the Criminal Code Act 1995 (Cth) states that where a physical element which consists only of conduct does not specify a fault element, then intention is the fault element for that physical element. The section does not limit this to express physical elements, so the fault element for the implied conduct must be intention. The correct analysis of culpability of the indictable offence is illustrated by Table 3 below.
652 The design of these tables is the work of Ian Leader-Elliott, who used it to illustrate the displacement of the implied fault elements by offence sections: Leader-Elliott, I. “Elements of Liability in the Commonwealth Criminal Code” (2002) 26 Criminal Law Journal 28
653 See Odgers, S., Principles of Federal Criminal Law (2nd ed, 2010) 27
Table 3 Correct Interpretation of the Fault Elements in s 132AN
Characterisation of Physical Elements Criminal Code Application
Fault Element
Implied Conduct Do an act or create a state of affairs
s 5.6(1) applies Intention to do the act or create the state of affairs
Result A literary, dramatic or
musical work is performed
s 5.6(2) applies Recklessness as to the result a literary, dramatic or musical work will be performed
Circumstance In public at a place of public entertainment
s 5.6(2) applies Recklessness as to the nature and location of the performance
Result Performance infringes
copyright in the work
s 5.6(2) applies Recklessness as to the result that the performance will infringe copyright
Section 4.3 of the Criminal Code Act 1995 (Cth) places a limitation on the applicability of omissions as physical elements. An omission may only be a physical element if the law creating the offence makes it so,654 or if the offence impliedly provides that the offence is committed by an omission to perform an act that by law655 there is a duty to perform.656 Since neither of these conditions are met by s 132AN(1) or (3), an omission cannot constitute the implied conduct element under this analysis.
The implied conduct must be an act or the creation of a state of affairs. There would be no criminal liability under s 132AN if a person omits to check that hirer of their venue will be performing a literary, dramatic or musical work, since there is no legal duty to do so.
A causal link between the conduct and the resulting performance of a literary, dramatic or musical work would also need to be established. Since “to cause” is not defined by the Copyright Act 1968 (Cth), the common law principles of causation apply.657 In Royall v R,658 McHugh J stated that
“judicial and academic efforts to achieve a coherent theory of common law causation have not met with significant success.”659 Much of the criminal case law on causation has been distilled from
654 Criminal Code Act 1995 (Cth) sch 1 s 4.3(a)
655 This is further restricted to a law of the Commonwealth by the Criminal Code Act 1995 (Cth) sch 1 s 4: “law means a law of the Commonwealth and includes this Code”
656 Criminal Code Act 1995 (Cth) sch 1 s 4.3(b). See also Commonwealth Attorney – General’s Department, The Commonwealth Criminal Code: A Guide for Practitioners (2002) 45
657 See generally: Hart, H.L.A and Honore, T. Causation in the Law (2nd ed, 1985)
658 Royall v R (1991) 100 ALR 669
659 Royall v R (1991) 100 ALR 669, 719
murder cases in which an intervening act has occurred, including intervening acts by the victims themselves. While this is far removed from the present area of discussion in terms of its factual basis, the legal principles are capable of being applied to this offence.
The most obvious candidate for a person who causes a performance would be that of the performer actually performing the work. However, in most cases the performer will not be the same person who makes the arrangements for licensing the performance of the work. It is more likely that this will be the responsibility of the venue management. In these circumstances, it would be unlikely that the performer would be held to be negligent or reckless that the performance infringes copyright in the work if they are not responsible for obtaining the licence to perform the work. This is required by the third element of the offences under s 132AN and is discussed below at paragraph [2.1.5].
It would therefore be necessary to prove that the person responsible for obtaining the performance licence had caused the performance if anyone was to be held criminally liable for an infringing performance.
[2.1.3] Commission by proxy
The simplest approach for attaching liability for the implied conduct to someone other than the performer is through the operation of s 11.3 of the Criminal Code Act 1995 (Cth). The operation of s 11.3 is discussed in detail in Chapter 4 at paragraph [4]. This approach would allow the prosecution to target the person most at fault if an infringing performance takes place. It would have to be shown that the person responsible for obtaining the appropriate licence to perform the work procured the person who caused a literary, dramatic or musical work to be performed and intended that work to be performed. In some instances, the person responsible for obtaining the licence and the person who procures a performance will be the same person, e.g. the owner of a bar. In other situations where the responsibilities are more diffuse, the offence would need to be charged as a joint commission.660
[2.1.4] “in public at a place of public entertainment”
The meaning of “in public” has been discussed in Chapter 5 at paragraph [4.5.2]. A “place of public entertainment” is defined for the purposes of Div 5 in s 132AA of the Copyright Act 1968 (Cth) which states it “includes premises that are occupied principally for purposes other than public entertainment but are from time to time made available for hire for purposes of public entertainment”. This definition leaves the remaining scope open to interpretation. In many States
660 Criminal Code Act 1995 (Cth) sch 1 s 11.2A
and Territories it is necessary for a place of public entertainment to obtain a licence from the appropriate licensing authority,661 but other States have removed this requirement.662 These licensed places are very likely to fall within the definition for the purposes of these offences.
Whether a place amounts to somewhere that is from time to time made available for the purposes of public entertainment will ultimately be a question of fact for the courts. However, useful guidance for the type of entertainment that is likely to be considered in the assessment can be found in the Places of Public Entertainment Ordinance 1949 (NT):
“entertainment (including, though without limiting the meaning of that term, concert, recital, lecture, reading, entertainment of the stage, cinematograph or other picture show, dancing, boxing or other amusement or contest and the provision of more than 3 amusement machines) which is open to, or are available for use by, the public whether admission thereto or use thereof is or is not procured by the payment of money or on any other condition.”663
Any premises that have been hired out for any of these activities may be included. However, the more contentious issues will be whether a one-off hire would constitute “from time to time” and how frequently the premises would have to be hired in order to be correctly characterised as a place of public entertainment. How courts will approach these issues is unclear, and the infrequency of prosecutions means this will probably remain the case.
[2.1.5] “the performance infringes copyright in the work”
The Copyright Act 1968 (Cth) grants the owner of copyright in a work the exclusive right to perform the work in public,664 so a performance which is unlicensed by the copyright owner will be an infringing performance. It is also an infringement of the performance right to permit a place of public entertainment to be used for a performance in public,665 unless:
(1) the person had no reasonable grounds for suspecting the performance would constitute an infringement;666 or
(2) if the permission was given gratuitously, for a nominal consideration, or did not exceed reasonable expenses incurred.667
661 Places of Public Entertainment Ordinance 1949 (NT)
662 See http://www.planning.nsw.gov.au/StrategicPlanning/Entertainment/tabid/243/language/en-AU/Default.aspx (Accessed 15 March 2011)
663 Places of Public Entertainment Ordinance 1949 (NT) s 4
664 Copyright Act 1968 (Cth) s 31(1)(iii)
665 Copyright Act 1968 (Cth) s 39(1)
666 Copyright Act 1968 (Cth) s 39(2)(a)
It is unlikely that a person could be held to have caused a performance of a work in a place of public entertainment merely by granting permission to use the place, so these exceptions will not apply to the offences under s 132AN.