HomeCybercrimeIn practice

How Do Cybercrime and Copyright Law Overlap?

Section 28 of the Cybercrime Code Act 2016 makes knowing and repeated online infringement of a right protected under the Copyright and Neighbouring Rights Act 2000 a crime carrying 15 years and a K1,000,000 corporate fine — far above anything in the Copyright Act itself.

The cybercrime series, no. 98 · Practical guidance · 5 min read

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

The Copyright Act and section 28 compared
Copyright and Neighbouring Rights Act 2000Cybercrime Code Act, s 28
Applies toAll infringementInfringement using an electronic system or device
ThresholdInfringement of a protected rightKnowingly and repeatedly
Civil remediesDamages, injunctions, delivery up; evidence preservation ordersNone — criminal only
Criminal penaltySee section 33 of that Act15 years; K100,000; K1,000,000 corporate; ICT prohibition
Investigation powersThose available in ordinary proceedingsThe full Part IV suite

Section 28 depends on the Copyright Act

The offence is defined by reference

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”.

The consequence for defences

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:

The same is true of expiry: once copyright has expired, there is no protected right to infringe.

“Knowingly and repeatedly”

Section 28 is aimed at commercial piracy

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

Paragraph (c) and section 44 pull in different directions

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:

  1. Do not monitor of your own initiative;
  2. Receive and log notices from rights owners;
  3. Act on them promptly;
  4. 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

Choosing between civil and criminal routes
ObjectiveRoute
Stop the infringementCivil injunction under the Copyright Act; or a takedown order under s 44(1)(d)(ii)
Recover moneyCivil onlydamages under the Copyright Act. Section 28 fines are payable to the State
Identify an anonymous infringerSection 35(b) production order, through police
Preserve evidence urgentlySection 36 preservation notice; or Copyright Act evidence orders
Deter a commercial operationSection 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.

Check the section yourself

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.

Disclaimer: This article provides general information about Papua New Guinea law and does not constitute legal advice. Laws may change, and their application depends on individual circumstances. You should obtain professional legal advice for your specific situation. Read the full disclaimer.