Introduction

We all love a binge – TV series, movies, music, and so much more. Consuming digital content is a massive source of entertainment, and we sometimes may be tempted to access it without paying or without authorisation. However, this seemingly harmless act has potentially severe criminal ramifications.

This is called digital piracy, and involves the unauthorised distribution or copying of copyrighted material, posing significant challenges for creators and consumers alike in Australia. Under the Copyright Act 1968 (Cth), copyright holders are granted exclusive rights, making any unauthorised use a potential infringement. This guide provides an overview of digital piracy laws in NSW, focusing on legal consequences, recent amendments, and practical implications for individuals and businesses.

What is Digital Piracy and Copyright Infringement

Definition of Digital Piracy and Examples

Digital piracy refers to the unauthorised copying, distribution, or use of digital content—such as movies, music, TV shows, and video games—without the permission of the copyright owner. It often occurs through:

• Peer-to-peer file sharing
• Illegal streaming websites
• Downloading from unverified sources

One of the most common forms of digital piracy is using torrents to obtain illegal copies of media. For example, downloading a movie or TV show through a torrenting platform without the copyright owner’s consent clearly constitutes digital piracy.

Digital piracy not only violates intellectual property rights but can also result in significant financial losses for content creators and businesses. It undermines industries that rely on legitimate sales and subscriptions to sustain production and innovation. Despite its prevalence, digital piracy is illegal under Australian law and can lead to serious legal consequences.

Understanding Copyright Infringement in Australia

Copyright infringement occurs when someone copies, communicates, or exhibits a copyrighted work without the permission of the copyright owner. Under the Copyright Act 1968 (Cth), copyright owners have exclusive rights to control the use of their work.

For films, these rights include:

• Making copies
• Causing the film to be seen or heard in public
• Communicating the film to the public

For TV shows, the rights extend to:

• Making cinematograph films or sound recordings of broadcasts
• Re‑broadcasting or communicating them to the public

Section 38 of the Act further outlines that selling, letting for hire, or commercially dealing with copyrighted material without permission constitutes infringement. This applies equally to commercial dealings and personal use—such as downloading a movie illegally through torrenting.

Copyright infringement can lead to:

• Civil actions, where the copyright holder may sue for damages
• Criminal offences, which can result in fines or imprisonment if the infringement is on a commercial scale or causes significant harm

Torrenting and Legal Consequences

Criminal Consequences for Digital Piracy via Torrenting

Although using torrenting software itself is legal in Australia, downloading or distributing copyrighted material without permission can lead to criminal charges under the Copyright Act 1968 (Cth).

Criminal offences arise when the infringement is committed on a commercial scale or causes substantial prejudicial impact to the copyright owner. For example, if torrenting involves distributing copyrighted material on a large scale for profit or causing significant financial harm to the copyright holder, it may be classified as a criminal offence.

To secure a conviction for a criminal offence under the Copyright Act 1968 (Cth), the prosecution must prove each of the following elements:

Elements of an offence under section 132AC(1)

• Unauthorised dealing
  The accused must have made, imported, sold, or otherwise dealt with infringing copies of a work.
• Commercial scale
  The infringement is carried out on a commercial scale—typically meaning large‑volume distribution or an operation designed for profit.
• Substantial prejudicial impact
  The dealing must cause significant financial harm or other prejudice to the copyright owner.
• Mens rea (criminal intention)
  The accused must intend to obtain a commercial advantage or to cause prejudice to the copyright owner.
• Penalties
  A maximum penalty of a fine of 550 penalty units ($60,500) or imprisonment for 5 years, or both, for individuals; corporations may face fines up to five times this amount.

Elements of a summary offence under section 132AC(3)

• Same core conduct as section 132AC(1)
  Dealing with infringing material, except the person must be negligent to the substantial prejudicial impact of their actions, and also negligent to the fact their infringement/s occurred on a commercial scale. In other words, this offence lacks the intention to cause harm and distribute commercially, but is instead negligent.
• Penalties
  Up to 120 penalty units ($13,200) or two years’ imprisonment, or both.

Elements of a strict liability offence under section 132AD(4)

• Dealing with infringing material
  The accused must have made an article for, or for the course of, selling, letting for hire, or obtaining a profit or commercial advantage from infringing copies which is copyrighted.
• No fault requirement
  Liability attaches regardless of whether the accused knew the material was infringing. However, there is still a defence if you reasonable and honestly made a mistake of fact, that if true, would mean you didn’t commit a crime – say, thinking you were uploading a permissible file, but your computer malfunctioned and uploaded a torrented file.
• Penalties
  Fines up to 60 penalty units ($6,600).

Other criminal offences (sections 132AD–132AJ) target specific conduct such as

• Making or distributing infringing copies with the intention of sale or commercial advantage
• Possession of devices or software primarily designed for infringement

Brief Overview of Civil Consequences for Digital Piracy

In a civil action under the Copyright Act 1968 (Cth), the copyright owner must establish these elements:

• Protected work
  The material in question is a “work” covered by copyright.
• Ownership
  The plaintiff owns or controls the copyright.
• Infringing act
  The defendant has engaged in an act restricted by copyright (e.g., reproduction, communication to the public).
• Absence of defence
  The defendant cannot rely on a statutory exception (such as fair dealing) or a valid licence.

Once these elements are proved, the court determines appropriate remedies by considering factors such as:

• The flagrancy of the infringement
• The need to deter future infringements
• The defendant’s post‑infringement conduct
• Any benefit the defendant gained from the infringement

Although civil actions do not result in imprisonment, they can impose substantial financial burdens on the defendant. It should be noted that pirating for your own personal use is very unlikely to result in criminal charges, but is still liable to civil action.

Amendments to the Copyright Act 1968 (Cth) and Enforcement Measures

Key Amendments Including section 115A

The Copyright Act 1968 (Cth) has undergone significant amendments to address the evolving challenges of digital piracy. One of the most notable changes is the introduction of section 115A in 2015. This amendment empowers copyright owners to seek injunctions against carriage service providers (CSPs) to block access to overseas websites that facilitate copyright infringement.

This measure has proven effective in curbing online piracy by targeting sites that offer illegal downloads and streams of copyrighted material, such as:

• Movies
• Music
• TV shows

Section 115A specifically allows copyright holders to apply to the Federal Court of Australia for an injunction that compels CSPs to disable access to infringing online locations. Furthermore, this provision extends to blocking proxy and mirror sites, which often emerge to circumvent previous blocks. The introduction of this section has significantly strengthened the legal framework for combating digital piracy in Australia.

Enforcement Actions and Case Study

The enforcement of these amendments has been demonstrated through several high-profile cases. One landmark case is Roadshow Films Pty Ltd v Telstra Corporation Ltd (2016), where the Federal Court granted an injunction requiring Telstra to block access to several piracy sites. This case set a precedent for how the law could be applied to effectively disrupt access to illegal content.

Since the introduction of section 115A, numerous sites and domains associated with piracy have been blocked. According to reports:

• Over 65 piracy sites have been blocked
• More than 378 domains have been affected by court orders

These enforcement actions highlight the government’s commitment to protecting intellectual property rights and combating digital piracy.

The amendments have also been broadened to include search engines, making it harder for users to find and access pirated content. This multi-faceted approach to enforcement has made it increasingly difficult for individuals and businesses to engage in digital piracy without facing legal consequences.

These changes and enforcement actions underscore the Australian government’s proactive stance in adapting copyright laws to the digital age, ensuring that creators and copyright holders are protected from the financial and creative impacts of piracy.

Defences and Legal Considerations for the Accused

Available Statutory Defences Under the Copyright Act

Under the Copyright Act 1968 (Cth), individuals accused of copyright infringement can rely on various statutory defences. These defences may mitigate or dismiss charges depending on the specific circumstances of the case. Key examples include:

• Fair dealing for research, study, criticism, review, or parody: applies when the use of copyrighted material serves legitimate purposes—such as research, study, or criticism—and does not prejudice the copyright owner’s rights.
• Temporary reproductions for communication or technical uses: covers temporary copies made for communication or technical processes, such as caching or buffering.
• Educational, healthcare, or public purposes: permits use of copyrighted material by educational institutions, libraries, archives, or healthcare providers, provided it aligns with the exceptions under the Act.
• Law enforcement purposes: protects copyright material used by law enforcement agencies in investigations or prosecutions.

These defences underline the importance of understanding the context and purpose behind the alleged infringement, as they can significantly influence the outcome of a case.

Distinctions Between Civil Liability and Criminal Offences

It is crucial to distinguish between civil liability and criminal offences when facing digital piracy allegations.

• Civil liability typically involves lawsuits for damages, focusing on monetary compensation for unauthorised use of copyrighted material. Such actions are often pursued by copyright holders—even where personal use is at issue—and can lead to significant financial penalties.
• Criminal offences, on the other hand, involve state prosecution and may result in imprisonment or hefty fines, particularly when the infringement occurs on a commercial scale or causes substantial harm to the copyright owner. Prosecutors must demonstrate commercial‑scale infringement or substantial prejudicial impact, as outlined in sections 132AC and 132AD of the Copyright Act 1968 (Cth).

If you are facing allegations of digital piracy, seeking legal advice from an experienced criminal defence lawyer is essential to navigate the complexities of the law and explore available defences.

Conclusion

Digital piracy laws in NSW are complex and carry significant legal consequences, as outlined in this guide. Recent amendments to the Copyright Act 1968 (Cth), including section 115A, have strengthened enforcement measures, allowing copyright owners to block access to infringing sites. Understanding the distinctions between criminal and civil offences is crucial, as criminal offences can result in imprisonment and hefty fines, while civil actions focus on monetary damages.

If you are facing allegations of digital piracy or need legal advice on navigating these laws, contact Daoud Legal in Sydney today. Our team of trusted criminal defence lawyers offers specialised services tailored to your needs, ensuring you receive expert guidance and support to address your legal challenges effectively. Acting now can help protect your rights and future.

Frequently Asked Questions