Copy Me

I was asked today about the scope for establishing a version of Kopimi in Australia, and indeed whether there's any point apart from making geeks feel just a tad less unloved.

Kopimi (pron. copy me) - which I irreverently characterised as Piratbyrån at prayer - is in the news with reports that Sweden has recognised that informal organisation of information liberationists as a religion, centred on The Church of Kopimism. The Church reportedly claims that "kopyacting" - sharing information through copying - is akin to a religious service.

The BBC reports that Swedish government agency Kammarkollegiet "finally registered the Church of Kopimism as a religious organisation shortly before Christmas".

"We had to apply three times," said Gustav Nipe, chairman of the organisation.

The church, which holds CTRL+C and CTRL+V (shortcuts for copy and paste) as sacred symbols, does not directly promote illegal file sharing, focusing instead on the open distribution of knowledge to all.

It was founded by 19-year-old philosophy student and leader Isak Gerson. He hopes that file-sharing will now be given religious protection.

"For the Church of Kopimism, information is holy and copying is a sacrament. Information holds a value, in itself and in what it contains and the value multiplies through copying. Therefore copying is central for the organisation and its members," he said in a statement.

"Being recognised by the state of Sweden is a large step for all of Kopimi. Hopefully this is one step towards the day when we can live out our faith without fear of persecution," he added.

Would Australia recognise a local Kopimism as a religion and consequently grant special treatment (tax dispensations, a statutory defence for copyright infringements?) to clergy or ordinary members of that affinity group?

We could look to the High Court's decision in Church of New Faith v Commissioner of Pay-Roll Tax (1983) 154 CLR 120, where a majority held that the Church of New Faith (conventionally known as Scientology) was a religion.

In the decision - discussed in 'An Australian Definition of Religion' by Bruce Kaye in (1991) 14(2) UNSW Law Journal  332 [PDF] - the Court emphasised an individual's belief in the supernatural and the individual's conduct that was broadly attributable to that belief (ie the belief was 'lived' rather than being fashion statement). Conduct such as compliance with codes or other doctrine, the practice of worship, teaching and proselytising is 'religious' only if the motivation for engaging in that conduct is religious (as distinct from example for a purely financial benefit).

The decision followed more than a decade of controversy over the basis and activity of Scientology, with Hugh Urban in The Church of Scientology: A History of a New Religion (Princeton University Press, 2011) for example noting strong judicial criticism of Scientology in several liberal democratic states, a history of systemic illegality in the US, criticisms that it was a cynical and opportunistic scam perpetrated by L Ron Hubbard and associates, and claims that rebadging of Dianetics as a religious organisation was an effort to deal with claims that Hubbard was operating a cult or a very successful business.

The High Court heard an appeal from the Victorian Supreme Court's decision in Church of New Faith v Commissioner of Pay-Roll Tax (1983) 1 VR 97, in which the state court upheld a decision by the state's Commissioner of Pay-Roll Tax that Scientology was not a religion. The Victorian decisions were based on the claim that Scientology was a philosophy rather than a religion, with "the trappings of religion" (such as a quasi-clerical garb and symbol) having been acquired after the organisation's establishment in a deliberate effort to give the semblance of a religion and thereby gain favourable tax treatment or other benefits.

Mason Ag CJ and Brennan commented that

The question whether Scientology is a religion cannot be answered, for there seem to be important, perhaps critically important, tenets of Scientology which the parties left without full examination. The question which can be answered is whether the beliefs, practices and observances which were established by the affidavits and oral evidence as the set of beliefs, practices and observances accepted by Scientologists are properly to be described as a religion.

The High Court supported a broad definition of religion, although cautioning against a "too broad" meaning. Mason and Brennan stated that -

The mantle of immunity would soon be in tatters if it were wrapped around beliefs, practices and observances of every kind whenever a group of adherents chose to call them a religion ... A more objective criterion is required ... We therefore hold that, for the purposes of the law, the criteria for religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.

Wilson and Deane JJ, with the majority, indicated that there was no single characteristic which could be used to identify an organisation as constituting a religion. The most that could be done was to formulate a range of indicia from past decisions -

• that the particular collection of ideas and/or practices involved belief in the supernatural, ie belief that reality extended beyond that which was capable of perception by the senses;
• that the ideas related to man's nature and place in the universe and his relations to things supernatural;
• that the ideas were accepted by adherents as requiring or encouraging them to observe particular practices having supernatural significance; and
• that, however loosely-knit and varying in beliefs and practices adherents might be, they constituted an identifiable group or identifiable groups.

Murphy J articulated a broader position, indicating that it was not the role of the courts to pass judgement on the validity of the beliefs of the adherents of a religion.

Mason and Brennan referred to Adelaide Company of Jehovah's Witnesses Inc. v The Commonwealth (1943) 67 CLR 116, commenting that -

An endeavour to define religion for legal purposes gives rise to peculiar difficulties, one of which was stated by Latham C.J. in Jehovah's Witnesses Inc. (1943) 67 CLR, at p 123

It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world..

The absence of a definition which is universally satisfying points to a more fundamental difficulty affecting the adoption of a definition for legal purposes. A definition cannot be adopted merely because it would satisfy the majority of the community or because it corresponds with a concept currently accepted by that majority. The development of the law towards complete religious liberty and religious equality to which Rich J. referred in Jehovah's Witnesses Inc. (1943) 67 CLR, at p 149 would be subverted and the guarantees in s. 116 of the Constitution would lose their character as a bastion of freedom if religion were so defined as to exclude from its ambit minority religions out of the main streams of religious thought. Though religious freedom and religious equality are beneficial to all true religions, minority religions - not well established and accepted - stand in need of especial protection ... It is more accurate to say that protection is required for the adherents of religions, not for the religions themselves. Protection is not accorded to safeguard the tenets of each religion; no such protection can be given by the law, and it would be contradictory of the law to protect at once the tenets of different religions which are incompatible with one another. Protection is accorded to preserve the dignity and freedom of each man so that he may adhere to any religion of his choosing or to none. The freedom of religion being equally conferred on all, the variety of religious beliefs which are within the area of legal immunity is not restricted.

The HCA judgment should be considered in the context of UK and Australian judicial decisions rejecting claims for recognition as a religion or more broadly for charitable status. In essence, instances where an organisation is not considered to be a church (or corresponding religious entity) are typically where the organisation is not considered to be genuine. What's genuine? A belief system or practice cannot be legitimately characterised as a religion if it -

• is no more than a sham or a parody of a religion (bad luck for Jedi enthusiasts)
• is contrary to laws that do not discriminate against religion generally, against particular religions or against conduct of a kind that is characteristic only of religion;
• otherwise envisages or promotes conduct that is inconsistent with the prevailing public policy, such as being subversive of morality.

In Re Jones [1907] SALR 1990, concerned with the Incorporated Body of Freethinkers of Australia, there was no recognition because the organisation was held to lack a religious purpose. Its members did have beliefs, often strongly held and strongly expressed. Those beliefs included the tenet that "science provides for life and that materialism can be relied upon in all phases of society", with the Freethinkers organisation accordingly campaigning against religious belief systems and organisations. The court held that campaigning against another religion or religion per se cannot itself be a religion. In Bowman v Secular Society Ltd [1917] AC 406 a decade later the UK court was similarly unsympathetic, again holding that the Secular Society - whose objects included promotion of "the principle that human conduct should be based upon natural knowledge, and not upon super-natural belief, and that human welfare in this world is the proper end of all thought and action" - could not have a religious purpose because it worked against already established religions or against the idea of religion.

Lord Parker in Bowman famously stated that:

The abolition of religious tests, the disestablishment of the Church, the secularisation of education, the alteration of the law touching religion or marriage, or the observation of the Sabbath are purely political objects. Equity has always refused to recognise such objects as charitable.

It is unlikely that an Australian version of Kopimism - or an institutionalised group of Jedi, the Church of the Flying Spaghetti Monster (somewhat more benevolent that various Christian and Islamic sects) or fans of pizza & red wine - would gain recognition as a charity or as a religion.

In practice Sweden's recognition of Kopimism means little more than the organisation's name is protected (ie can't be appropriated by another entity, such the Church of the New Faith), the organisation appears in a national register of religious entities (statisticians rejoice!) and is eligible to apply for financial support from the government. It won't necessarily gain that support if it does apply. Registration does not necessarily provide adherents - and the spokespeople for Kopimism are at best vague about requirements for adherence - with a strong defence regarding copyright infringements.