Dealing in Pirated DVDs

One of the key concerns in the entertainment industries is the ease by which films, music, computer games and all other manner of modern day content can be copied and disseminated.  These concerns arise largely because of the rapid advance of digital copying technology which allows quick and convenient copying. The problem seems to be growing in New Zealand.

See article on DVD pirating Pirating of DVD’s – A Problem Unsolved! in the 17 October 2005 issue of LawTalk.

These concerns seem to be exacerbated by the seeming ability of some content pirates to not just survive but prosper in a country which traditionally has managed to keep this group very much on the back foot. Even though the government is currently looking at reform of the Copyright Act insofar as so-called “digital copyright” is concerned, the battle continues on the streets, with it seems decidedly mixed results.

Perhaps the current environment is typified by the situation involving Mr. Zheng Wang. Mr Wang was convicted in the Manukau District Court on 15 November 2004. He was charged under the Crimes Act 1961, for using a document known to be forged, to obtain a pecuniary advantage, and then escaping from custody. He had been arrested by the Police for selling pirated DVDs – being caught with a large number of DVDs and a sum of money in his possession. At the time of his arrest he tried to escape from custody.

The Police charged Mr. Wang under the Crimes Act (S 257 making or using a forged document) rather than under the Copyright Act (S 131 criminal offence of dealing in objects that are infringing copies of copyright works). In his sentencing, Judge Harvey took into account the need to deter other potential pirates and to protect the community from the impact that pirating can have in terms of reduced creativity and the increased prices of accessing copyright materials.

The Judge observed:

“I have to take into account the protection of the community, and there is a community interest involved in this type of offending.

Those who involve themselves in copyright infringement and matters of that nature prejudice not only the makers of the product, the authors, the movie makers, the musical artists, the bands and the record companies, but they also prejudice the greater community because what happens as a result of piracy is that prices must increase, access to material becomes difficult”.

Judge Harvey sentenced him to 15 months in prison on each charge, with the terms to run concurrently. It is understood that this was the first time in New Zealand’s that someone had been given a prison sentence in relation to pirated DVDs.  Mr Wang then appealed, so it seems, against both conviction and sentence. See Wang v Police (High Court, Auckland, CRI-2004-404-000476, 12 May 2005 and 23 March 2005, Baragwanath J unreported).

While endorsing Judge Harvey’s concerns, Baragwanath J. was unimpressed with the Crown’s argument that s 257(a) of the Crimes Act does not require proof of an attempt to deceive. His Honour noted that the requirement in sub clause (e) that the document be made “with the intention that it should pass as being made by some other person who did not make it…” point to Parliament’s purpose.  It requires the Crown to prove intent to deceive.

Accordingly, his Honour found that given the fact that here the DVDs:

…were obvious forgeries and bore no resemblance to genuine licensed products that would be bought and sold legitimately…

the necessary element could not be established and the forgery conviction could not stand.  The appeal against conviction was thus allowed and a sentence of 15 months for escaping from custody was set aside.  A 26 day prison term was substituted.

In terms of what might be taken from the judgment, arguably Baragwanath J’s decision is restricted to its own particular facts. Given that Mr Wang was selling DVDs which did not have the usual “get-up” i.e. signifying a legitimate or purportedly legitimate product, it was clear that he was selling fakes. It would thus seem that the High Court decision would not apply to disks containing labelling and packaging designed to look legitimate. In other words, it may well be that the amateurish of Mr Wang’s efforts ultimately saved him from a longer prison term.

The result must be a major disappointment for the entertainment industry.  It seems to be, with respect, unfortunate that someone found with 56 pirated DVD’s and a sum of money from the sale of others pirated DVD’s and who then attempts to escape from custody, manages to avoid serious censure. Music and movie piracy is a major problem and one would have thought that the Police would have been able to do a better job in getting an effective conviction and one that, in the current environment, would have a bit more deterrence value.

At a fundamental level one might question why the Police decided to use the criminal law “forgery” approach when the Copyright Act provides a tailor-made and express statutory regime for dealing with pirated copyright works such as DVDs.  One would have thought that the “forgery” approach would only be adopted if the law was silent or unclear, but in this particular case Parliament has dealt with the problem and provided specific remedies for law enforcement agencies. S 131 of the Copyright Act makes it a criminal offence to deal in objects that are infringing copies of copyright works.  The focus of the provision is on knowingly dealing in infringing copies rather than on dealing in copies that are made to look like originals, when they are in fact copies.

Commentators have noted that the criminal law is inappropriate for this sort of offending.  The wisdom of that view seems to have been borne out by these recent events. For my part, it seems to be undesirable that the success or failure of a prosecution should depend on how well the infringer or their supplier has copied and presented the wares.

That, I regret to say, is however not the end of the saga. Mr Wang now faces a charge alleging a breach of s.228A of the Crimes Act. It is understood that the allegation is that on 27 March 2005, with intent to defraud, he obtained a document namely illegal copies of DVD movies capable of being used to obtain a pecuniary advantage. A status hearing was adjourned but he failed to appear and a warrant for his arrest was issued by the Judge, to lie until a later date. It was subsequently confirmed and that is where things stand at present.

When and how the saga ends remains to be seen.

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