The Copyright Clink1

1 The Clink was a notorious prison in Southwark, England which functioned from the 12th century until 1780 either deriving its name from, or bestowing it on, the local manor, the Clink Liberty. See http://en.wikipedia.org/wiki/The_Clink

Conundrum: Is Chan Nai-Ming the Modern Day Josef K.?2

2 Josef K. is the name of the protagonist in Franz Kafka's The Trial. He awakens one morning and, for reasons never revealed, is arrested and subjected to the rigours of the judicial process for an unspecified crime. See http://en.wikipedia.org/wiki/The_Trial

Abstract

A study of the plight of the unfortunate³ Mr Chan Nai-Ming of Hong Kong leads the authors to conclude that a by-product of the digital age is the increasing criminalisation of copyright law. Increasingly, there is a worldwide trend to impose criminal liability for copyright infringement. For instance, in Australia broad ranging amendments to the Copyright Act, which (in part) implement obligations under the Australia–US Free Trade Agreement (AUSFTA) were introduced into parliament on 19 October 2006.⁴ This is part of a growing trend that originated in the United States with the introduction of harsh criminal laws to prohibit the infringement of copyrighted works to prevent piracy.⁵ However, according to the Law Society's intellectual property working group an EU directive intended to target organized crime could see innocent victims face criminal proceedings for intellectual property infringement.⁶ Significantly, it would appear that few have considered the absurd ‘full-on’ ramifications of this attempt to impose criminal sanctions on those who commit minor infringements of copyrighted works.

Notes

1 The Clink was a notorious prison in Southwark, England which functioned from the 12th century until 1780 either deriving its name from, or bestowing it on, the local manor, the Clink Liberty. See http://en.wikipedia.org/wiki/The_Clink

2 Josef K. is the name of the protagonist in Franz Kafka's The Trial. He awakens one morning and, for reasons never revealed, is arrested and subjected to the rigours of the judicial process for an unspecified crime. See http://en.wikipedia.org/wiki/The_Trial

3 One blogger has referred to Chan's conviction sardonically as ‘The most embarrassing conviction ever?’, see http://www.teknologika.com/soapbox/ (posting of 14 December 2006).

4 B Fitzgerald ‘Copyright visions, copyright jails’, posted 26 October 2006, available at http://www.onlineopinion.com.au/view.asp?article=5068

5 Ibid.

6 J Rayner ‘IP crime warning’, Gazette Vol 104, No 18, 3 May, p 6, 2007. While the directive calls for intellectual property infringements on a ‘commercial scale’ to be treated as a criminal offence, it is not clear what this actually means, ‘…is it the market trader selling 50 fake DVDs a day or the person who has set up a factory to turn over 200,000 pirated DVDs every 24 hours?

7 Quoting op cit, note 2.

8 http://en.wikipedia.org/wiki/Chan_Nai-ming

9 http://legalref.judiciary.gov.hk/lrs/common/ju/judgment.jsp at para 1 et seq.

10 http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=46722 at para 1.

11 http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=55378 at para 94.

12 Op cit, note 10.

13 Ibid.

14 Ibid.

15 Ibid.

16 Ibid.

17 Ibid.

18 Ibid.

19 Ibid.

20 Op cit, note 4.

21 Ibid.

22 Ibid.

23 Ibid.

24 Ibid.

25 Ibid.

26 Ibid.

27 Ibid. at para 16. http://legalret.judiciary.gov.hk/Irs/common/ju/ju_frame.jsp?DIS=55378

28 Ibid.

29 http://www.jura.uni-tuebingen.de/bechtold/text/shetland_interdict.htm

30 118 Fed. 3rd 199; 43 USPQ 2d 1299.

31 Ibid.

32 Ibid.

33 Ibid.

34 Ibid.

35 Op cit, note 2.

36 Ibid.

37 Ibid.

38 ‘Two copyright infringers sentenced in Shanghai’, People's Daily 16 June 2000, available at http://english.people.com.cn/english/200006/16/eng20000616_43188.html

39 http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/Music%20Pirates.htm

40 Ibid.

41 http://www.usdoj.gov/usao/vaw/press_releases/stanley_17oct2006.html

42 Available at http://www.copyright.gov/legislation/pl109-9.html

43 Op cit, note 28.

44 Ibid.

45 D Bradbury ‘Can stuck torrents beat pirates?’, Guardian 12 April 2007, p T1.

46 Ibid.