Breaking Down: Copyright (Compounding of Offences) Regulations 2023

 

On September 1, 2023, the Copyright (Compounding of Offences) Regulations 2023 was gazetted and came into operation. This is in line with Sections 41A and 59 of the Copyright Act 1987 (“Act”), which empower the Minister to make regulations for the carrying out of the provisions of the Act.

These newly gazetted regulations provide a framework and outline the offences which may be compounded and procedures for settling such offences.

Key Takeaways

Offences which may now be compounded with the consent in writing of the Public Prosecutor are set out in the First Schedule:

(a) Subsection 27A(8): Operating as a licensing body without obtaining a declaration from the Controller to be declared as a collective management organisation under Subsection 27A(1).

(b) Subsection 33(2): Failing to comply with the Tribunal’s request for information.

(c) Offences listed in Section 41(1)(a)-(k), which includes but are not limited to (i) making for sale or hiring any infringing copy, (ii) selling, letting for hire or by way of trade, exposing or offering for sale or hire any infringing copy, or (iii) distributing infringing copies during the subsistence of copyright in a work or performers’ right.

(d) Subsection 41(3): Causing a literary or musical work, sound recording, or film to be performed in public.

(e) Subsection 43A(1): Operating an audiovisual recording device in a screening room to record any film in whole or in part.

(f) Subsection 43A(2): Attempting to commit an offence under Subsection 43A(1).

(g) Subsection 43AA(2): Committing or facilitating infringement of the copyright in any work by, inter alia, (i) manufacturing a streaming technology for sale or hire; (ii) importing a streaming technology; (iii) selling or letting for hire, offering, exposing or advertising for sale or hire, possessing or distributing a streaming technology in the course of a business; (iv) distributing a streaming technology for purposes other than in the course of a business to such an extent as to affect prejudicially the owner of the copyright; or (v) offering to the public or providing any service of streaming technology.

(h) Paragraph 43I(1)(a): Providing incorrect information in a notification under Section 43H.

(i) Section 47: Breaking, tampering or damaging any seal or removing such things or documents or attempting to do so with any item in the premises or container that are seized and sealed by the Assistant Controller or a police officer not below the rank of Inspector.

(j) Section 48: Obstructing a search conducted by an Assistant Controller or a police officer below the rank of Inspector.

(k) Subsection 52A(1): Tipping off or disclosing to any other person information or any other matter which is likely to prejudice an investigation or proposed investigation by an Assistant Controller or a police officer not below the rank of Inspector.

(l) Subsection 52B(5): Failing to adhere to the instructions given by the Assistant Controller under Section 52B in carrying out an investigation.

 

What does this mean?

Compounding essentially means payment as a settlement/fine in lieu of prosecution of an offence. Section 41A(4) of the Act provides that when an offence has been compounded, no prosecution shall be instituted in respect of the offence against the person to whom the offer to compound was made. The advantage, undoubtedly, is that this is an effective tool to decrease the time to resolve a case drastically.

Whilst there is a Latin maxim “interest reipublicae ut sit finis litium” which indicates that it would be in the best interests of the state to keep litigation to a minimum, the selection of these offences, particularly Sections 41(1) and 43AA(2) may appear to dilute the severity and deterrent factor of the offences.

Although Section 4 of the Regulations provides an option (for the person to whom the offer to compound was made) to accept the compound, the practicality of this provision remains to be tested.