N4615
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 410 OF 2011

THE STATE

V

CHRIS CHEN

Madang: Cannings J
2012: 12, 13, 14, 23 March

CRIMINAL LAW – wilful infringement of copyright for profit-making purposes, Copyright and Neighbouring Rights Act 2000, Section 28(1) – trial – whether the State proved beyond reasonable doubt that a right under the Act had been infringed.

The accused, the sales manager of a retail store, was charged with one count of wilful infringement of copyright for profit-making purposes, contrary to Section 28(1) of the Copyright and Neighbouring Rights Act 2000 (the "Copyright Act"), which states: "A person who infringes a right protected under this Act, if done wilfully or by gross negligence and for profit-making purposes, is guilty of an offence." It was alleged that he downloaded songs that he had stored in a computer on to a flash-drive that had been brought to the store by a customer and that he charged the customer a fee for this service. It was alleged that the songs were musical works in which copyright vested in favour of the author of the songs, the complainant, and that under the Act the complainant had the exclusive right to authorise reproduction of his work and that he did not authorise its reproduction. The accused pleaded not guilty and a trial was conducted.

Held:

(1)	There are four elements of the offence under Section 28(1):

•	existence of a right protected by the Copyright Act;
•	infringement of that right;
•	wilfully or by gross negligence;
•	for profit-making purposes.

(2)	The first element was proven as the complainant, a well known musician, was the author of a number of musical works, which are "protected works" under Section 4(1)(a)(iv) of the Act, and therefore had the right under Section 6(1) to authorise their reproduction.

(3)	The second element was not proven as, although there was sufficient evidence for the court to conclude that the accused did, in fact, download songs from a computer to a flash drive and charge a customer a fee for that service, it was not proven that the downloaded songs were, in fact, musical works that the complainant had authored and that were subject to the complainant's right to authorise their reproduction. As the downloaded songs were not identified sufficiently in the evidence, the State failed to prove that the complainant's rights were infringed.

(4)	The third and fourth elements were proven as it was clear that the accused had deliberately downloaded songs and charged a fee for that service, thus acting "wilfully" and "for profit-making purposes".

(5)	As the State failed to prove an element of the offence, the accused was acquitted.

Cases cited

The following cases are cited in the judgment.

CL Toulik v Andy Kuek and FinCorp Limited (2006) SC876
Pukari-Flabu v Hambakon-Sma [1965-1966] PNGLR 348
The State v Koivi Ipai (No 2) (2010) N4167

TRIAL

This was the trial of an accused charged with wilful infringement of copyright for profit-making purposes.

Counsel

J W Tamate, for the State
B W Meten, for the accused

23 March, 2012

1. CANNINGS J: Chris Chen, the accused, is the sales manager of the Good Life Store in Madang town. He is charged with one count of wilful infringement of a copyright for profit-making purposes, contrary to Section 28(1) of the Copyright and Neighbouring Rights Act 2000 (the "Copyright Act").

2. It is alleged that he downloaded songs that he had stored in a computer on to a USB flash drive (an electronic data storage device that includes flash memory with an integrated Universal Serial Bus interface) that was brought to the store by a customer and that he charged the customer a fee for this service. It is alleged that the songs are musical works in which copyright is owned by the author of the songs, the complainant, Gedix Atege, and that under the Copyright Act the complainant has the exclusive right to authorise reproduction of his work and that he did not authorise its reproduction. The accused pleaded not guilty and a trial was conducted. Three State witnesses gave evidence: the complainant, the customer who allegedly paid money to the accused to have the complainant's songs downloaded and the police investigator. The accused remained silent and there was no evidence for the defence.

THE OFFENCE

3. Section 28(1) (criminal sanctions) of the Copyright Act states:

A person who infringes a right protected under this Act, if done wilfully or by gross negligence and for profit-making purposes, is guilty of an offence.

Penalty: Imprisonment for a term not exceeding ten years or a fine not exceeding K100,000.00, or both.

4. There is no reported case in which this or any other provision of the Copyright Act has been the subject of judicial interpretation. In fact for many years PNG had no statutory copyright law. The Copyright Act 1978 never commenced operation and the Copyright and Neighbouring Rights Act 2000 only commenced operation on 1 July 2002 (CL Toulik v Andy Kuek and FinCorp Limited (2006) SC876). So the task falls to me to dissect this provision into its elements for the purposes of determining what has to be proven by the State to obtain a conviction.

5. The offence has four elements:

(1)	the existence of a right protected under the Copyright Act;

(2)	infringement of that right by the accused;

(3)	wilfully or by gross negligence;

(4)	for profit-making purposes.

6. The State must prove the existence of every element beyond reasonable doubt. If one or more is not proven to that standard of proof the accused must be found not guilty.

1 	WAS THERE A RIGHT PROTECTED UNDER THE COPYRIGHT ACT?

7. The complainant Gedix Atege, from Gum village on the outskirts of Madang town, is a well known musician. He gave sworn evidence that he has been recording albums on a regular basis since 1995, when he was a member of the Wali Hits band. After three albums, which were released under the Tumbuna Treks Studios label, he went solo, recording first with Rising Star Studios and more recently with CHM Supersound Studios, with which he has recorded four albums. He wrote all the songs on his solo albums. Also in evidence was an uncontested statement by Auburn Antonio Adraincem, Special Projects Manager, CHM & Sons Ltd, that the complainant has a recording contract with CHM and PNG Legend Ltd under which he remains "the rightful owner of his songs".

8. On the basis of that evidence I am satisfied that the complainant is the author of a number of "musical works", and that by virtue of Sections 4(1)(a)(iv), 4(2), 6(1)(a) and 7(1)(a) of the Copyright Act (the text of which is set out in an appendix to this judgment):

•	they are "protected works";
•	the complainant is the owner of the copyright in them;
•	therefore he has the exclusive right to authorise (or refuse to authorise) their reproduction (this is one of the 'economic rights' conferred on the owner of copyright under Section 6(1)); and
•	amongst other rights, he has the right to have his name indicated prominently on any copies of those works (this is one of the 'moral rights' conferred on the owner of copyright under Section 7(1)).

9. The State has proven the first element of the offence: the complainant has a number of rights in respect of his musical works that are protected by the Act, in particular he has the exclusive right under Section 6(1)(a) to authorise their reproduction.

2	DID THE ACCUSED INFRINGE ANY OF THE COMPLAINANT'S RIGHTS?

10. The complainant, Gedix Atege, testified that he did not authorise the accused or anyone else to download any of his songs on to flash drives or otherwise reproduce his songs. Under his contract with CHM he had been receiving royalties of several hundred Kina per month but during 2010 there was a sharp drop. This has caused him and his family financial hardship. He enquired with CHM to find out what was happening and they said that there were a number of retail outlets, particularly in Madang, downloading songs and selling his music, and as a result, cassette and CD sales had dropped. He decided to do his own investigation. He gave some cash to a couple of his boys and sent them into town and asked them to see if they could buy any of his music. He couldn't do it himself as he would have been recognised. Sure enough the boys came back with flash drives on to which his music had been downloaded. He took the flash drives to the police and laid a complaint and then the police did an official investigation.

11. In cross-examination the complainant said that he accompanied the police when they went to the Good Life Store with a search warrant and seized a laptop computer and a receipt book from the accused. He observed that the store was selling flash drives and he believes that his music and music of other artists was on them and that is why he sent his boys into this particular store. Mr Meten, for the accused, challenged him strongly on this part of his evidence and it is noteworthy that the complainant's evidence differed from that of the key State witness, Gabe Aaron, on the question of whether customers were purchasing flash drives with music already on it (the complainant's evidence) or going into the store with their own flash drives and paying a fee for having music downloaded on to it (Mr Aaron's evidence). 

12. On this point I prefer the more incident-specific evidence of Mr Aaron to the general evidence of the complainant, which was largely hearsay and based on an impression he gained when he went to the store with the police.

13. That aside, the complainant's evidence was largely uncontested and I find it proven that he did not authorise the accused to download any of his songs on to flash drives or otherwise reproduce his songs. Therefore, if it is proven that the accused did download any of the complainant's songs on to a flash drive and that he did not just make a single copy exclusively for his own personal purposes (conduct which is permissible under Section 8(1) of the Act: see Appendix), he will have infringed one of the complainant's economic rights – the right not to have his musical work reproduced without his authority, which is the right protected under Section 6(1)(a) of the Act – and the second element of the offence will be proven.

14. Gabe Aaron, a friend of the accused, was one of the boys referred to by the complainant. His evidence was that the complainant gave him some cash so on 18 October 2010 he took a flash drive to the Good Life Store. He had been there before and seen the accused, who was one of the bosses, working there. He gave cash to the 'first boss' and asked him to download some songs to the flash drive. The first boss took the money and then he got the 'second boss' – who the witness identified as the accused – to download the songs. The songs downloaded were those of the complainant (the witness could not recall how many), plus those of other artists, Junior Wali Hits and Kopex. He paid K15.00 and was given a receipt, a copy of which he identified and was admitted into evidence. A white Kingston brand USB flash drive, which the witness said contains songs of the complainant and which was the flash drive he was referring to in his testimony, was also admitted into evidence. 

15. He took the flash drive to the complainant and told him that his songs were on it and the complainant said that he had been trying to stop that practice. That is when he went with the complainant to the police.

16. In cross-examination Mr Aaron was emphatic that the accused was the person who did the downloading.

17. The final State witness was the police investigator Sgt Tangi Elisha of Madang CID. In the course of his investigation into alleged widespread copyright breaches in Madang he obtained District Court search warrants for the Good Life Store and three other retail outlets. He conducted a search of the Good Life store and seized a laptop computer and took it to the CID Office for inspection. He found no music recorded on it, a fact that he puts down to the proprietors of Good Life and the other investigation targets being tipped off about the impending searches. 

18. He did, however, seize a carbon copy style receipt book, which contained a record of a transaction apparently involving Mr Aaron. Copies of photographs that he took of the receipt book and page (No 0089) of the book on which a carbon copy of the receipt has apparently been made and the receipt (obtained, he says, from Mr Aaron) were admitted into evidence without objection. The receipt, handwritten, states:

18-10-10 			[0089]

TO GABEI [sic]

FROM GOOD LIFE M/MART

PAID CASH
 
DOWNLOADING SONGS

K15.00

[Signed: indecipherable]
73554906

19. Sgt Elisha said that two other people were charged in the operation, one, a man called Jason, who also worked at the Good Life Store and a woman who worked at one of the other stores. Both went missing after being granted bail and are still at large.

20. On the basis of that evidence I conclude that it has been proven that on 18 October 2010 at the Good Life Store the accused downloaded songs from a laptop computer to a flash drive belonging to a customer, Mr Aaron. He did so on request and charged a fee of K15.00 for that service. He did not just make a single copy exclusively for his own personal purposes.

21. I accept the evidence of Mr Aaron that that is what happened. He was a reasonably impressive witness, though a little vague on details, such as the date that this incident happened, how many songs were downloaded, whether he asked for particular songs or songs by particular artists to be downloaded. However, the receipt has been admitted into evidence. It corroborates Mr Aaron's version of events and, despite the signature on the receipt being indecipherable, it implicates the accused of wrongdoing.

22. But were any of the complainant's songs downloaded? If so, which ones? The court is not in a position to provide answers to these questions. As Mr Meten emphasised in submissions, none of the songs on the flash drive were identified by any witness, not even the complainant, as being songs or musical works in which the complainant held copyright. I accept these submissions.

23. In fact, the court does not know that there are any songs on the flash drive. No attempt was made by the prosecution to 'play' the flash drive in the courtroom. Electronic equipment should have been brought into the courtroom for that purpose. The complainant, and an independent witness such as a radio DJ, should have been asked to identify the musical works as being those of the complainant; and Mr Aaron should have been asked to verify that the music being played was that which he had paid the accused to download. Mr Tamate invited me to play the flash drive for myself and to take judicial notice of the songs on it, in the same way that a judge views, for example, a photograph that is admitted into evidence. In the course of hearing a no-case submission made at the close of the State's case I indicated that I might just do that; but on reflection I was being over-confident of my knowledge of PNG music and, frankly, as a matter of procedural fairness it would be wrong for a Judge to enter a conviction on the basis of his opinion, formed in private, of whether the songs he had listened to were those of a particular artist. That would not be a proper way to approach the task of determining the crucial questions of fact: Are there songs by Gedix Atege on Mr Aaron's flash drive? And were they amongst the songs downloaded by the accused in the store on 18 October 2010? 

24. Mr Tamate insists that Mr Aaron's evidence is sufficient to answer those questions in the affirmative. But I agree with Mr Meten: that is not good enough. This is a criminal trial. The accused is presumed innocent until proven guilty according to law. The criminal standard of proof is to be applied to each element of the offence and to each question of fact that arises within each element. The Court cannot act on the say-so of a witness that certain songs are those of a certain artist. I remarked that Mr Aaron was a reasonably impressive witness but he was not presented as an expert witness so there remains the risk that he might be mistaken: the songs might be those of some other artists.

25. These seem such simple things to prove but in the final analysis it has not been proven beyond reasonable doubt that the songs downloaded to the flash drive were the complainant's musical works and therefore it has not been proven that any of his rights protected under the Copyright Act have been infringed. The second element is not proven.

3	DID THE ACCUSED ACT WILFULLY OR GROSSLY NEGLIGENTLY?

26. I consider that 'wilfully' for the purposes of this offence means 'intentionally', and nothing more. This is the way that the courts in PNG have generally interpreted the word 'wilfully' for the purposes of the Criminal Code (Pukari-Flabu v Hambakon-Sma [1965-1966] PNGLR 348, The State v Koivi Ipai (No 2) (2010) N4167) and I see no justification for a different interpretation being used in the Copyright Act. The State does not have to prove that the accused infringed a person's rights maliciously or knew that it was wrong. It is sufficient to prove that the accused did the act constituting the infringement of a right protected by the Act, intentionally.

27. Here, the accused acted intentionally by downloading the music to the flash drive. The third element is proven.

4	DID THE ACCUSED ACT FOR PROFIT-MAKING PURPOSES?

28. The evidence is clear that the accused was charging a fee for a service that the Good Life Store was providing. He was acting for a profit-making purpose. The fourth element is proven.

CONCLUSION

29. The State has failed to prove the second element of the offence and therefore the accused must be acquitted. Both sides should learn a lesson from how this case has turned out. The accused – who might well consider himself lucky to have escaped conviction (which would make him liable to a maximum penalty of a ten-year term of imprisonment or a fine of K100,000.00 or both) – and everyone in PNG who might be engaged in the practice of infringing copyright: take note, the penalties are heavy, and it is criminally and morally wrong to steal the work of a musician or other artist, particularly our local artists who depend for their livelihood on record sales. For the State: more finesse needs to be brought to bear in the investigation and prosecution of this sort of crime. Fundamental mistakes were made in this case which should not be repeated in future.

VERDICT

30. Chris Chen is found not guilty of wilful infringement of copyright for profit-making purposes and not guilty of any other offence and shall be discharged from the indictment.

Verdict accordingly.
___________________________
Public Prosecutor: Lawyer for the State
Meten lawyers: Lawyers for the accused

APPENDIX

KEY PROVISIONS OF THE
COPYRIGHT AND NEIGHBOURING RIGHTS ACT:
SECTIONS 4 TO 8

4.	Works protected.

(1)	Subject to this Act, the following works are protected works and are eligible for copyright under this Act:—

(a)	literary and artistic works of original intellectual creations in the literary and artistic domain, including in particular—

(i)	books, pamphlets, articles, computer programs and other writings; and
(ii)	speeches, lectures, addresses, sermons and other oral works; and
(iii)	dramatic, dramatic-musical works, pantomimes, choreographic works and other works created for stage productions; and
(iv)	musical works, with or without accompanying words; and
(v)	audiovisual works; and
(vi)	works of architecture; and
(vii)	works of drawing, painting, sculpture, engraving, lithography, tapestry and other works of fine art; and
(viii)	photographic works; and
(ix)	works of applied art; and
(x)	illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science; and

(b)	derivative works including in particular—

(i)	translations, adaptations, arrangements and other transformations or modifications of works; and

(ii)	collections of works and databases, whether in machine, readable or other forms; and

(iii)	collections of expressions of folklore provided that such collections are original by reason of the selection or arrangement of their contents.

(2)	Works eligible for copyright under this section are protected by the sole fact of their creation irrespective of the mode or form of expression, content, quality or purpose.

(3)	The protection of any work referred to in this section shall be without prejudice to any protection of a pre-existing work or expression of folklore incorporated in or utilized for the making of such a work.

5.	Subject matters not protected.

Notwithstanding the provisions of Section 4, protection under this Act shall not extend to—

(a)	any idea, procedure, system, method of operation, concept, principle, discovery or mere data, whether expressed, described, explained, illustrated or embodied in a work; and

(b)	any official text of a legislative, administrative or legal nature or any official translation thereof.

6.	Economic rights.

(1)	Subject to this Act, the author or other owner of copyright shall have the exclusive right to carry out or to authorize the following acts in relation to the work:—

(a)	the reproduction of the work; and
(b)	the translation of the work; and
(c)	the adaptation, arrangement or other transformation of the work; and
(d)	the distribution to the public by sale, rental, public lending or otherwise of the original or a copy of the work that has not already been subject to a distribution authorized by the owner of the copyright; and
(e)	the rental or public lending of the original or a copy of an audiovisual work, a work embodied in a sound recording, a computer program, a database or a musical work in the form of notation, irrespective of the ownership of the original or copy concerned; and
(f)	the importation of copies of the work; and
(g)	the public display of the original or a copy of the work; and
(h)	the public performance of the work; and
(i)	the broadcasting of the work; and
(j)	other communication of the work to the public.

(2)	The rights of rental and lending under Subsection (1)(e) does not apply to rental or lending of a computing program where the program itself is not the essential object of the rental or lending.

7.	Moral rights.

(1)	The author of a copyright work shall have the right—

(a)	to have his name indicated prominently on the copies and in connection with any public use of his work; and

(b)	not to have his name indicated on the copies and in connection with any public use of his work; and

(c)	the right to use a pseudonym; and

(d)	to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honour or reputation.

(2)	Subsection (1) shall apply whether or not a person no longer owns the rights of a copyright work.

(3)	The rights referred to in Subsection (1) may be transmissible during the life of the author, but the right to exercise any of those rights may be transmissible by testamentary disposition or by operation of law following the death of the author.

(4)	The author of a copyright work may waive any of the rights referred to in Subsection (1) provided that such a waiver is in writing and clearly specifies the right or rights waived and the circumstances in which the waiver applies.

(5)	Any waiver of the right under Subsection (1)(d) shall specify the nature and extent of the modification or other action in respect of which the right is waived.

(6)	Following the death of the author of a copyright work, the person or legal entity upon whom or which the moral rights have devolved shall be entitled to waive the rights under this section.

8.	Private reproductions for personal purposes.

(1)	Notwithstanding the provisions of Section 6(1)(a), and subject to Subsection (2), the private reproduction of a published work in a single copy may be made without the authorization of the author or owner of copyright where the reproduction is made by a person exclusively for his own personal purposes.

(2)	Subsection (1) does not apply to the reproduction—

(a)	of a work of architecture in the form of building or other construction; or
(b)	in the form of reprography of the whole or a substantial part of a book or of a musical work in the form of notation; or
(c)	of the whole or a substantial part of a database in digital form; or
(d)	of a computer program except as provided in Section 13; or
(e)	of any work in cases where reproduction would conflict with a normal exploitation of the work or would otherwise unreasonably prejudice the legitimate interests of the author or other owner of the copyright.

_________________________