Two statutes now govern copyright infringement in Papua New Guinea when it happens online: the Copyright and Neighbouring Rights Act 2000 and the Cybercrime Code Act 2016.
The two regimes
| Copyright and Neighbouring Rights Act 2000 | Cybercrime Code Act, s 28 | |
|---|---|---|
| Applies to | All infringement | Infringement using an electronic system or device |
| Threshold | Infringement of a protected right | Knowingly and repeatedly |
| Civil remedies | Damages, injunctions, delivery up; evidence preservation orders | None — criminal only |
| Criminal penalty | See section 33 of that Act | 15 years; K100,000; K1,000,000 corporate; ICT prohibition |
| Investigation powers | Those available in ordinary proceedings | The full Part IV suite |
Section 28 depends on the Copyright Act
Section 28 criminalises infringing, authorising the infringement of, or facilitating or enabling the infringement of “a right protected under the Copyright and Neighbouring Rights Act 2000 or any other laws relating to copyright”.
If conduct does not infringe a right protected under the Copyright Act, it cannot offend section 28. So the free use provisions of the Copyright Act operate as a complete answer to a section 28 charge:
- Private and personal use;
- Temporary reproductions — which covers the caching and buffering inherent in internet transmission;
- Quotation;
- Teaching and library and archive uses;
- Media reproduction;
- Back-up copies of computer programs;
- Importation for personal use.
The same is true of expiry: once copyright has expired, there is no protected right to infringe.
“Knowingly and repeatedly”
The two requirements are cumulative. A single act of infringement is outside the section, and so is infringement by a person who genuinely believed they held a licence or that the work was free.
What section 28 targets is systematic activity: a site distributing pirated material, a business selling unlicensed software, an organisation running unlicensed copies across its network.
Note the contrast with section 29 and section 30, which both say “knowingly or repeatedly”. The copyright offence is, on the words, the hardest of the three to establish.
Platforms and intermediaries
Section 28(c) reaches a person who facilitates or enables infringement — hosting, indexing, linking, supplying the means.
But section 44(1)(a) makes it a crime for an ICT service provider to monitor what it transmits or stores for users, or to actively seek evidence of their illegal activity.
A provider therefore cannot police its service proactively, and must not knowingly facilitate infringement. The reconciliation is notice and response:
- Do not monitor of your own initiative;
- Receive and log notices from rights owners;
- Act on them promptly;
- Comply with any court order under section 44(1)(d), including a takedown order under sub-paragraph (ii).
A documented process is what establishes what the provider knew and what it did — the two questions that decide liability under both sections.
Which route a rights owner should take
| Objective | Route |
|---|---|
| Stop the infringement | Civil injunction under the Copyright Act; or a takedown order under s 44(1)(d)(ii) |
| Recover money | Civil only — damages under the Copyright Act. Section 28 fines are payable to the State |
| Identify an anonymous infringer | Section 35(b) production order, through police |
| Preserve evidence urgently | Section 36 preservation notice; or Copyright Act evidence orders |
| Deter a commercial operation | Section 28 — the 15-year and K1,000,000 exposure |
The two regimes are cumulative, not alternative. Section 3(2) provides that the Act is in addition to and not in derogation of other laws relating to criminal matters.
Sources
- Cybercrime Code Act 2016 — ss 3, 28–30, 35, 36, 44
- Copyright and Neighbouring Rights Act 2000
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.