Section 28 of the Cybercrime Code Act 2016 turns online copyright infringement into a serious criminal offence.
Section 28
(a) infringes; or
(b) authorises the infringement of; or
(c) facilitates or enables the infringement of,
a right protected under the Copyright and Neighbouring Rights Act 2000 or any other laws relating to copyright, is guilty of a crime.
Penalty: natural person — imprisonment up to 15 years; or a fine up to K100,000; or an ICT prohibition for the term of imprisonment plus two years; or all or any of them. Body corporate — a fine up to K1,000,000.
Section 33 of the Copyright and Neighbouring Rights Act 2000 already creates criminal liability for infringement, with penalties far below these.
Section 28 is not a replacement. It is an additional offence, engaged where the infringement is committed using an electronic system or device, and where it is done knowingly and repeatedly.
“Knowingly and repeatedly”
Knowingly. The person must know that what they are doing infringes. Innocent infringement — a genuine belief in a licence, or in the material being out of copyright — is outside the section.
Repeatedly. A single act of infringement is not enough. The word requires a course of conduct.
Taken together, they direct the section at commercial and systematic infringement — a site distributing pirated films, a service selling unlicensed software, a business running unlicensed copies across its network — rather than at the individual who downloads one film.
Note the conjunction: the requirement in section 28 is “knowingly and repeatedly”, where section 29 and section 30 both say “knowingly or repeatedly”. On the words as drafted, the copyright offence is harder to establish than its trade mark and patent counterparts.
Infringe, authorise, facilitate
| Mode | Reaches |
|---|---|
| (a) Infringes | The person who copies, distributes, communicates or performs the work — the primary infringer |
| (b) Authorises | The person who sanctions, approves or countenances the infringement — the same concept as in copyright law generally |
| (c) Facilitates or enables | The person who provides the means — hosting, indexing, linking, supplying the tools |
“Facilitates or enables” reaches intermediaries. A person operating a site that indexes infringing material, or a service that provides access to it, may commit the offence without themselves copying anything.
The limits are the mental elements: the facilitation must be done knowingly, repeatedly, and without lawful excuse or justification.
An ICT service provider should also read section 44, which sets out when a provider is criminally liable and when it is not.
Which rights are protected
Section 28 protects “a right protected under” the Copyright and Neighbouring Rights Act 2000. That includes:
- The economic rights — reproduction, translation, adaptation, distribution, rental, public performance, broadcasting, communication to the public;
- Moral rights — attribution and integrity;
- Performers’ rights, producers’ rights and broadcasters’ rights — the neighbouring rights.
And the closing words extend it to “any other laws relating to copyright”.
Conversely, conduct that is permitted under the Copyright Act cannot infringe a right protected under it. The free use provisions — private use, quotation, teaching, libraries, back-up copies of software — operate as a complete answer to a section 28 charge.
Practical points
- For rights owners. Section 28 is an additional route alongside the civil remedies in Part X of the Copyright Act and the evidence preservation orders available there. The Part IV powers — production orders, preservation notices — support an investigation.
- For businesses. Unlicensed software deployed across a network is capable of being knowing and repeated infringement using an electronic system. A software asset register and licence records are the answer.
- For platforms. A notice and takedown process, acted on promptly, is the practical protection against the “facilitates or enables” limb.
- Not triable summarily. Section 28 is not listed in Schedule 2. See summary trial.
See also how cybercrime and copyright law overlap.
Sources
- Cybercrime Code Act 2016 — ss 2, 28, 29, 30, 35, 36, 44, 48; Schedule 2
- 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.