New proposals to make online copyright infringement a criminal offence risks punishing users who share links and files online more harshly than ordinary, physical theft.
The IPO has recently started consultation on proposals to increase the maximum prison sentence for criminal online copyright infringement to 10 years, aiming to match sanctions for online copyright infringement with physical copyright infringement. The rationale behind this is that similar offences should attract similar penalties, regardless of the platform used in committing the crime.
Although ORG agrees with IPO's rationale that the online environment should not confer less protection, IPO's proposals are problematic. The existing offence is outlined in section 107 of the Copyright Designs and Patents Act. It can be brought against both criminals who deliberately infringe copyright by operating filesharing services and also against people who share links and files without the intention or knowledge that it would actually prejudice the copyright owner.
The IPO is suggesting that people can be sentenced for up to ten years for online copyright infringement that “affects prejudicially” a copyright holder. While this may sometimes be appropriate, the underlying offence is very broad, and requires no intent on the part of the offender. There is no separation in the offence between different kinds of infringement, which opens the possibility of non-literal copying, such as excessive quotation or incidental use, being the subject of these offences.
We are particularly worried that this could lead to heavy handed punishments for individuals who are sharing files, who may have no intent to harm or cause damage. While such people should be seen as committing a civil offence, they should face more appropriate punishments. By means of comparison, ten years gaol is longer than the maximum penalty of seven years for physical theft, which requires actual intent.
Commercial infringements “In the course of a business” can be much more reasonably targeted by harsher sentences, but here too there are risks as there is no easy way to distinguish between a legitimate business making mistakes and one seeking to abuse the copyright of others for profit.
In all cases, there is scope for exaggeration and misconception of the scale of damage being created. Online infringement is hard to estimate and damages are often assumed to be much higher than in cases of physical infringement. It is therefore much easier for an individual to appear to be “affecting prejudicially” the business interests of another, and find themselves accused of committing a criminal offence with a very long possible gaol sentence. This is inappropriate.
Anne Muir's case from 2011 illustrates exactly the dangers of parity as proposed by IPO. She admitted to distributing copyrighted music files worth up to £54,000 using a filesharing application. Lawyers claimed that she uploaded files to build her self-esteem. She did not financially gain: while she certainly sounds misguided it seems unlikely that she should be regarded as a hardened criminal.
There are already criminal sentencing options that are tough enough to deal with organised online copyright infringers. The Federation Against Copyright Theft has on previous occasions carried out private prosecutions under the Criminal Justice Act 1987's common law conspiracy to defraud. This offence fetches a maximum sentence of 10 years – the same as physical copyright infringement. It is also not difficult to obtain conviction for conspiracy to defraud under Fraud Act 2006. All that must be proved is false representation, a failure to disclose information or abuse of position. Intention to defraud is not at all required.
For example, in 2012, Anton Vickerman was sentenced to 4 years imprisonment for allegedly causing losses of up to £198 million. He had been operating an illegal streaming website called "SurfTheChannel". Compare this with the defendant in R v Hatton (2008), who was sentenced to 18 months imprisonment for pirating 20,000 DVDs.
People committing crimes should be punished, and copyright should be supported by enforcement. However, copyright should be subject to the same kinds of standards as other crimes. As this offence stands, it is much stricter and harsher than other kinds of crimes, and therefore risks bringing copyright into disrepute should individuals be prosecuted and threatened with long gaol sentences for non-commercial misdemeanours. We are therefore asking for the sentence to be left as it stands.
The offence itself, to infringe "otherwise than in course of a business to such an extent as to affect prejudically the owner of the copyright" needs to be removed or modified to exclude non-commercial infringers, or introduce notions of intent to harm alongside qualifications to measure the kind of harm being targeted. Once this is done, longer setences targeted at commercial infringers may be justified.