[TODAY 5-SEP-2007 ODEX NEWS]WHO WILL Protect THE KIDS from
copyright oWNers?
THOMAS KOSHY
IT WAS in September 2003 that the Recording Industry Association of
America (RIAA) fired the first salvoes in the war against home
users who had infringed copyright by downloading music off the
Internet.
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Four years and thousands of claims later, the battle still rages
on. And the casualties have included even pre-teen children accused
of such copyright infringement.
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The tsunami of claims by copyright owners against home users that
originated in America has generated ripples in Singapore, seen in
the demands made by Odex against youths who had allegedly
downloaded copyright-infringing anime off the Internet.
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One of the 105 Odex claims that have been settled reportedly even
involved a nine-year-old child. Most of the other offenders were in
their late teens or early twenties.
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So, does the law afford any protection to such youths, especially
those who have yet to attain the age of majority?.
To start with, copyright infringement can lead to criminal and
civil proceedings. Generally, criminal proceedings lead to
punishments such as imprisonment and fines. Civil proceedings
normally result in money or damages being paid to the
claimant.
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The Penal Code states that no act by a child under seven years of
age is an offence. Children between seven and 12 years old will not
be held criminally-liable if they had not attained sufficient
maturity of understanding to judge the nature and consequences of
the act.
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It follows that a child below seven years of age cannot be
convicted for a copyright offence (or any other crime for that
matter), and the same may apply to children up to the age of
12.
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Even if a child does commit a copyright offence, one would expect
him to be warned rather than be hauled to court. And even if the
child were charged in court, the expected punishment would be
probation rather than any fine or imprisonment. Children below the
age of 14 may not be sentenced to imprisonment at all.
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In the face of these laws to protect children, it would seem
inappropriate to send letters to children threatening them with
fines and imprisonment. .
Threatening criminal prosecution unless some form of compensation
is paid could very well be illegal in itself.
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It may be useful if the Public Prosecutor, who is the fount of
authority to prosecute crimes, makes it clear that private persons
should not threaten criminal proceedings in pursuing claims for
compensation.
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It is also worth considering if the Public Prosecutor should, as a
matter of policy, refuse to issue fiats for private prosecution of
offenders who are minors.
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After all, profit-driven copyright owners cannot be trusted to have
the interests of minors at heart. Cases involving minors are
probably best dealt with by the Public Prosecutor.
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How about civil claims against children then? Most people are aware
that minors do not have the legal capacity to enter into contract.
Under Singapore law a minor is anyone below 21 years old.
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But a claim for copyright infringement is not based on a contract
and so the rule about minors not having the capacity to contract
has no relevance. Therefore, one is apparently never too young to
be sued for copyright infringement.
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Still, even if there is no legal impediment to suing minors for
copyright infringement, doing so may prove futile.
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There is little satisfaction in obtaining a paper judgment against
a minor who is unable to cough up any money to satisfy such a
judgment a classic case of throwing good money after bad.
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This is probably why the RIAA decided not to pursue its now
notorious court case in the US against Brittany Chan who was 12
years old when she was accused of downloading copyrighted files
through a peer-to-peer file-sharing network.
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The RIAA had tried to hold Brittany's mother Candy liable for
facilitating the illegal downloads but withdrew their claim when
faced with Candy's application for it to be struck out.
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The law protects minors in court by demanding that the minor be
represented by an adult guardian. Prior to court proceedings, there
is currently no impediment to copyright owners sending a demand
letter directly to a child suspected of copyright
infringement.
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Given that many of those who may find themselves on the wrong side
of copyright laws are likely to be children and youths, this may be
a cause for concern. The reaction of a child to such an unexpected
threat of dire legal consequences may be unpredictable and
disproportionate to the actual situation.
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Allowing copyright owners to enter into settlements with minors may
also lead to exploitation.
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In a world where children may inadvertently find themselves tangled
in confrontations with big businesses, it may be worth considering
whether more can be done to protect the interests of the
young.
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Copyright owners have a loud voice when it comes to lobbying for
legislation. But who will speak for the children? The law must
achieve the right balance to protect even the mute.
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The writer is a legal academic.
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These are his personal views.
http://www.todayonline.com/articles/209316.asp
