OSIA director Brendan Scott told ZDNet Australia that recent modifications to the Copyright Act will "criminalise normal activity of retailers and carriers".
"The advent of new amendments to the Copyright Act are an opportunity to remedy problems with the implementation Bill. The commercial scale infringements in section 132(5DB) make retailers and carriers liable for the conduct of their customers," Scott said.
Section 132(5DB) "creates an offence for a person to engage in conduct which results in copyright infringement on a commercial scale regardless of whether the conduct is blameworthy".
The amendment said that a person commits an offence relating to significant infringement of copyright if the person engages in conduct and the conduct results in one or more infringements of the copyright in a work or other subject-matter; and the infringement or infringements have a substantial prejudicial impact on the owner of the copyright; and the infringement or infringements occur on a commercial scale.
Scott said that under the modification, the person or group would still have committed an offence even if the infringement is carried out by someone else without the person's knowledge or authority or if the person didn't know that the consequences of their conduct would be infringement.
"It's crazy. If Harvey Norman sells a CD burner and it is used to burn a heap of illegal CDs has Harvey Norman committed an offence? What about the teller at the cash register who sold it to you? What about the record store that sells the CD that infringements are made from? They've each engaged in conduct which meets the requirements of 132(5DB)," Scott said.
Scott added that the provision gives a largely unfettered right of action against all electronics retailers and manufacturers in Australia, as well as anyone providing carriage services.
"It destroys certainty across the industry. I wouldn't want to be a carrier, manufacturer or a retailer. It has to be changed and now is the perfect opportunity," Scott said.
OSIA suggested adding a qualifier that sets out the requirement for intent such as "the person intends for the conduct to have the results in [copyright infringement]."
Scott said the modifications will have "a very broad reaching and a very negative effect on pretty much anybody who 'engages in conduct' that might have the effect on copyright infringement."
He added that carriers like Telstra and Optus would be answerable to the law if their customers engage in copyright infringing behaviour using the telecommunications carriers' services.
"The wording is pretty straightforward. There's an argument that the criminal law would interpret an intention requirement, but the intention requirement would probably be that they engaged in the conduct, rather than they intended the consequences," Scott said.
"There has to be a closer relationship between the conduct and the consequences arising from the conduct in terms of the person's intention," he added.
Scott said the modifications of the copyright Act was not restrictive to any technology or any particular means of conduct. However, he added that people who use the technology to copy content for personal use which will not affect copyright owners in a commercial scale might be safe from the modified Act.