August 27, 2008

As an SCL member, you can choose to be a passive recipient – receiving the magazine, soaking up web info and attending courses – the target of SCL’s educational role.

But these are crucial times for the shape of IT law as it will govern 21st century communications and transactions. If you care about more than understanding the law and want to see laws in place which recognise technological, social and commercial realities then you need to act to express your views. And it helps if those views are refined by exchanges with others interested in the same field and form part of a coherent outlook with the weight of an influential body behind them.

SCL aims to create a vehicle for its members to express views on a range of relevant topics – but it is not always overwhelmed by responses from active members. The latest consultation vehicle aims to provide a response to the BERR proposals on illicit file-sharing; the SCL Internet Interest Group is holding a special meeting on 17 September to inform the SCL response on the recent consultation paper on illicit P2P file-sharing (see the Diary or SCL Web site for full details). A consultation paper on data retention where the Home Office is calling for views on draft Electronic Communications Data Retention (EC Directive) Regulations 2008 also merits an SCL response. So if you care about these topics, join with your fellow members and inform the response – your Society needs you.

Copyright Enforcement

One other consultation paper gained my attention recently. The UK Intellectual Property Office is consulting on penalties for copyright infringement. As it states: ‘to reflect the commercial damage that large scale copyright infringement causes, the UK-IPO is consulting on increasing the level of fine handed down by a Magistrates’ Court to a maximum of £50,000’.
It bears repeating that all opinions in editorials (and elsewhere in the magazine) are from the author rather than SCL. It bears repeating because I think that the UKIPO has entirely lost touch with reality in making such a proposal.
First, as Davenport Lyons have graphically demonstrated in their successful action against a file-sharer on behalf of TopWare Interactive, the financial ‘penalties’ which can be imposed through a civil action are pretty intimidating. The victims of copyright infringement are not defenceless old ladies but (generally) vibrant commercial organisations with resources or members of trade organisations which have such resources. The criminal justice system and trading standards officers have limited resources which need to be husbanded carefully.
Secondly because the relevant offences (with minor exceptions) are either-way offences and, if behaviour merits such large fines, the case can be tried at the Crown Court where the fine which can be imposed is without limit. There is scarcely an offence on the statute book where the prosecution would not like to see trial limited to magistrates’ courts with increased powers but the principle that a defendant in a criminal trial has recourse to trial in the Crown Court when faced with a serious charge trumps that desire comfortably.
Thirdly because copyright infringers are subject to action under the Proceeds of Crime Act 2000, which offers a criminal court an opportunity to deprive them of all their ill-gotten gains (and, if the truth be known, a bit besides).
Finally, and crucially, the UKIPO has lost touch with reality if it thinks that the public will happily accept the idea of giving copyright infringement priority in terms of the penalties that magistrates’ courts can impose. Of course it matters and of course infringers should be deterred but, when faced with the trail of misery that normally populates the precincts of a magistrates’ court, it is not a priority deserving of a fine ten times the normal maximum.


I worried that the SCL Conference in November was too leading-edge. I feared that lawyers may not see convergence as a priority. But it turns out that the great British public is there already. Check out the Ofcom report on Communications on the SCL Web site and book for Edinburgh quickly!