Up until now, no attempt has been made by the Sangha to grade copyright infringement in terms of a vinaya offence. The result has been that sometimes monks, having copied printed works, software or audio material, have later worried whether they might have committed a light or a heavy offence; they are unable to correctly distinguish the two. This muddling of offenses was criticized by the Buddha, and so some attempt to clarify the situation should be made.
Is copying a form of theft?
In Vinaya, theft is considered as taking place when four conditions are met:
The object belongs to another person.
It is known to do so.
An effort to steal the object is made.
The effort is successful.
In copying computer programs or book publications, no removal of property takes place. Both the computer disc and book can be returned to their owner. So copying is not theft at all.
Ownership and designs
Unlike physical objects, information is not something that can be personally owned. A car can be owned, but not the design of a car. If someone makes a copy of a car, there are then two cars, but not two designs. If someone steals one of the cars, or both of them, they haven’t stolen the design. Thus the car can be stolen, but not the design. Similarly, books and CDs can be owned, but not the information on them. Thus, the concept of ‘stealing information’ is simply an illusion.
Tantamount to theft.
Copyright infringement is commonly considered to be tantamount to theft. But in Vinaya, although serious acts of theft are parajika offences, acts that are merely tantamount to theft are not. For instance, there are two ways a monk can illegitimately obtain goods: through theft and through deceit.
Theft through deceit is called fraud. Fraud is illustrated in the illustrative stories (Cases 41-45) where monks, when food was being distributed to the Sangha, claimed food for non-existent monks, or nuns deceitfully obtained food and ate it themselves (Cases 145 and 146). The Buddha said this was an offence of pacittiya for lying, not parajika for theft. Given that copyright infringement, too, is merely tantamount to theft, one cannot therefore assume it is a parajika offence. What offence under vinaya it could be needs to be investigated.
Copyright infringement: which vinaya offence?
Acts of copyright infringement can be loosely listed in order of increasing severity:
1.Copying small quantities for one’s own benefit (i.e. ‘fair dealing’, the amount of copying that is automatically sanctioned by law).
2.Copying large quantities for one’s own benefit.
3.Copying small quantities for non-profit distribution
4.Copying large quantities for non-profit distribution
5.Copying an article for profit.
Let us consider the most serious of these, category 5. In copying an article for profit, an infringer makes copies of articles and sells them. He is thus receiving money that should have legitimately gone to the copyright holder. And this is the main grievance of the copyright holder, this diversion of funds.
This phenomenon of diversion is adequately dealt with under Nissaggiya Pacittiya 30 (NP30). If you reformulate the wording of this rule to cover the situation where an individual – rather than a Sangha or a shrine – is the recipient of the diverted assets, this rule would read thus: “Should any bhikkhu cause to be given gains to himself that he knew were to be given to an individual, it is an offence of dukkata”. Apart from this dukkata, the monk would, of course, be guilty of an offence under NP19 for dealing in money, and would also, of course, be culpable under civil or criminal law.
Infringements under categories 1-4 can be considered lesser offenses than category 5 because in law there is a division between criminal offences "for which a guilty person may be punished by way of a fine or imprisonment or both, and acts which are infringements of copyright in respect of which the owner of the copyright may bring civil proceedings seeking various remedies such as injunction, damages and costs. Generally speaking, acts which constitute criminal offenses are infringing acts which are carried out for commercial or trading purposes" (de Freitas, UK copyright consultant, private communication, 1993). Therefore, category 5 is the most serious category.
We should also note that producing large quantities of infringing products for non-profit purposes (i.e. category 4) to such an extent as to prejudicially affect the owner of the copyright in many countries is also a criminal offense and could therefore result in heavy fines and imprisonment (e.g. see Australian Copyright Council 2006, Information sheet G63). In fact, this is the criminal offence that monks are most likely to fall into. So, I take it for granted that neither civil law nor vinaya would treat categories 1 to 4 more seriously than category 5 – though category 4 may also be a criminal offence. So, under vinaya, because category 5 is a dukkata offence, categories 1-4 would seem to be dukkata offences or less.
Showing of videos
Showing hired videos to a paying audience is also an infringement of copyright, similar to category 5, infringement done for commercial purposes. According to Vinaya it would therefore be a dukkata offence, but only if the monk knew that at least one member of that audience would otherwise have attended a legitimate fee-paying performance, because this would then be diversion of funds away from the copyright owner. If the audience was non-paying, it would be no offence under NP30.
As for the law, however, if the showing is for a non-paying audience who are not one's intimate friends and family, the copyright holder could claim that a public showing of his work had taken place. ('It may be a [civil or criminal] offence to cause the public performance of copyright material at 'a place of public entertainment' – Australian Copyright Council 2006).
The structure and logic of Vinaya cannot be compared to worldly law. Offences considered minor under vinaya may be serious under law. For example, although physical assault is merely a pacittiya offence, under law it is imprisonable. So, for monks, vinaya is not a replacement for law, but an addition to it.
As for Copyright Law, monks should make a reasonable effort to acquaint themselves with it, and where necessary, should seek permission from copyright holders before using their material if such use is not automatically sanctioned by law. Not only is this a legal requirement, it is polite. And experience has shown that such requests have resulted in new friendships for the Sangha.
The Sangha should understand copyright offences correctly, and not exaggerate the problem, because the Buddha has said confusing light and heavy offences is blameworthy:
“Monks who explain that a light offence is heavy, or a heavy offence is light, their practice is to the loss and misery of the manyfolk, the loss, injury and misery of deities and men. Moreover, they beget much demerit and cause the disappearance of true Dhamma. But those who explain that a light offence is light, and a heavy offence is heavy, their practice is to the profit and happiness of the manyfolk, the good, profit and happiness of deities and men. Moreover, they gain much merit and establish true Dhamma” (A.1.20).