Amid publishers’ threats to refer matter to federal police, copyright law experts say pursuing a civil case would be more straightforward

This article is more than 4 months old

This article is more than 4 months old

Federal government officials who allegedly distributed Malcolm Turnbull’s book before its release could face a possible criminal prosecution if it was shown they were responsible for a “commercial-scale” copyright breach, experts say.

But amid threats by the publisher to refer potential criminal breaches to the Australian federal police, copyright law specialists said the company and the former prime minister might have a better chance of bringing a civil lawsuit.

The uproar over the early distribution of Turnbull’s memoirs – and the role of one of Scott Morrison’s senior advisers – overshadowed the official release of the book on Monday. Labor blasted the behaviour as “childish” and raised concern about the impact on workers within all tiers of the publishing industry.

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The adviser, Nico Louw, was reported on Sunday to have apologised for sending unauthorised copies of Turnbull’s memoir, A Bigger Picture, to 59 acquaintances, while the prime minister’s office said staff members had been “reminded of their obligations under copyright law, and of the high standards of conduct expected of them”.

Lawyers for Turnbull and the publisher, Hardie Grant, said in a cease-and-desist letter to Louw at the weekend that they would be “proceeding against this malicious conduct and infringement of copyright immediately”.

Hardie Grant said it planned to refer the issue to the AFP and was also considering subpoenaing government members to seek the source of the illegal copies, according to a report in Nine newspapers.

The wide distribution within government circles became apparent when Marise Payne, the foreign minister, told the ABC’s Insiders program on Sunday she had “received and deleted” the unauthorised copy, but she said it had not come from the prime minister’s office.

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The agriculture minister, David Littleproud, revealed that he, too, had deleted the book after receiving a copy of it from a friend outside the government via WhatsApp.

An AFP spokesperson said the agency had not received a referral in relation to the matter. Guardian Australia has contacted the publisher for comment.

The Copyright Act 1968 outlines penalties of up to five years in jail for “commercial-scale infringement” that has “a substantial prejudicial impact on the owner of the copyright”.

But Turnbull and the publisher would have to persuade the AFP to investigate and pursue the matter. A court would have to take into account the volume and value of the infringing copies when deciding whether it was of a commercial scale.

Other sections of the Copyright Act would allow Turnbull and the publisher to bring a civil suit seeking damages for alleged copyright violations.

Matthew Rimmer, a professor of intellectual property and innovation law at the Queensland University of Technology, said it might be more straightforward for the publisher to pursue a civil case rather than seek a criminal referral.

“In terms of the standard of proof, it’s perhaps easier to be established in relation to a civil matter,” he said. “There are some complex questions about at what threshold do the criminal offences kick in.”

Yet-to-be-answered factual questions included exactly how widely the work had been distributed and what kind of impact that would have on book sales.

Given that parliamentarians have pushed for stronger measures to protect copyright over the past decade, Rimmer said it was “surprising and shocking that MPs and staffers have been alleged to have been infringing those self-same copyright laws”.

The head of the Australian Publishers Association, Michael Gordon-Smith, said leaders “should not be tolerating any behaviour that suggests some people – particularly people at the top levels of government – follow different rules from the rest of us”.

Gordon-Smith said the publishing industry was under pressure in the coronavirus crisis, with bookshops closing their doors and a number of publishers telling him their revenues were down by about 50%. He noted that Hardie Grant had already had to lay people off during the crisis while other publishers were being forced to make cuts.

In the Australian market, many books would do well if they sold 5000 copies, Gordon-Smith said, and any difference to potential sales – even a reduction by several hundred – could have a “decisive” impact.

The Labor leader, Anthony Albanese, described the reported distribution of the book from within the prime minister’s office as “a pretty childish thing to do” and an “act of bitterness”.

He was not surprised the publishers were taking it so seriously, he said, given the potential impact on workers in the industry, including the staff and owners of local bookshops, the printers, the publishers and the delivery drivers.

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“I’m surprised that someone in the prime minister’s office thought that they could do that as well and that no one would notice,” Albanese told Radio 2SM.

The treasurer, Josh Frydenberg, said Turnbull’s book was an unwelcome distraction. “I vehemently disagree with some of the free character assessments that he handed out in this book,” Frydenberg told Sky News.

In the book Turnbull portrays Morrison as a “control freak” and a plotter against another former prime minister, Tony Abbott.

Last week the Australian newspaper published unauthorised passages, including that Turnbull had said Morrison’s government did not deserve to win last year’s election, prompting some conservatives to call for Turnbull’s expulsion from the Liberal party.

Louw has not responded to Guardian Australia’s request for comment