Unlike the music, film and computer games industries, the computer software sector has been comparatively slow to embrace the criminal provisions of the UK copyright legislation. There are many reasons for this but perhaps the most prevalent is a lack of familiarity with the law and practice in this area.
What is the Law?
Sections 107 and 110 of the Copyright, Designs and Patents Act 1988 create criminal offences in relation to the making, distribution, importation, sale, possession in the course of a business and hire of infringing and illicit copies of all copyright works. The maximum term of imprisonment for all of these offences has been increased to ten years’ imprisonment.
In recent years criminal liability has also been extended to anyone who communicates infringing works to the public, thus making Internet pirates criminally liable for the first time. The maximum term of imprisonment for this offence is presently two years, although discussions are taking place with a view to increasing this in line with the other offences.
In the music and film industries custodial sentences of two to three years are now relatively common – much to the shock in court of the infringers. Offenders can also be fined and the victim (the owner of the copyright) awarded a sum in compensation which often equates to the damages they would have recovered in the civil courts. Trading Standards departments have also now been given extra powers to enforce copyright laws and to prosecute offenders.
Criminal Actions as Deterrent
It is abundantly clear that both Parliament and the courts are anxious to send a general message of deterrence that copyright infringement is theft and will be treated as such. The entertainment based industries have been benefiting from this new regime for many years and their trade associations and collecting societies have dedicated anti-piracy units to investigate these infringements. Organisations such as FACT in the film industry are given budgets that run into millions of pounds to target, investigate and ultimately prosecute pirates. The experience of the film and music industries is that criminal action has deterred existing infringers far more than civil proceedings ever can or will.
When Should I use a Criminal Prosecution?
Criminal prosecutions are not suitable however for all copyright infringement actions; in order to convict an offender in the criminal courts it is necessary to prove the offence beyond all reasonable doubt whereas in the civil courts it is on the balance of probabilities. This means that prosecutions are unsuitable for genuine commercial disputes such as a dispute over the ownership of copyright. But prosecutions are completely appropriate for cases of clear infringement where copyright ownership is not at issue (and can be proven) and where the evidence of infringement is strong. They are not confined to out and out piracy and prosecutions brought following a complaint by one established company against another are common.
Criminal prosecutions are also very effective in targeting individuals who in the civil courts might be able to shelter behind defunct companies. Directors, officers and managers can all be guilty to the same extent as a company provided they can be shown to have consented or connived in the criminal behaviour. And their criminal record follows them around from company to company so they cannot set up and close down companies at will infringing copyright along the way without seriously compromising their liberty.
Anyone can make a complaint to the police or the local council’s trading standards officers that a criminal offence has been or is still being committed in their area. But whilst both are duty bound to investigate there is no guarantee that they will actually prosecute the offender. They may be prepared to execute a search warrant on business or home premises and seize infringing material and this may prove effective in disrupting the business of the pirate as well as obtaining further evidence of the criminal behaviour.
However, if they are not prepared to prosecute, the copyright owner should consider bringing a private prosecution in the local magistrates’ court. This is a relatively simple process and, unlike the civil courts, the law does moves very quickly. Within one month of issuing the summons against a defendant for breach of copyright, that person, or if it is a company its directors, must appear in person before a magistrates’ court to plead guilty or not guilty to the substantive criminal offences with the very real risk of a custodial sentence being passed. This tends to concentrate the mind and guilty pleas are pretty common. If the defendant pleads not guilty or the crimes are particularly serious (thus necessitating lengthy imprisonment), the case will be referred to the Crown Court for a jury trial or for sentencing. It is not unusual for a trial to take place within two months of the date of issue at the magistrates’ court and within five to six months at the Crown Court.
Under the general criminal law any person or company has the right prosecute these offences not just the Crown Prosecution Service. The Prosecution of Offences Act 1985 enables anyone to stand in the name of the Queen and prosecute what is deemed to be a crime against society; the proceedings will actually be cited as R v [name of pirate]. The prosecutor need not even be the copyright owner and indeed an enforcement body (even without any special legal standing) may be the most appropriate prosecutor.
Costs Available from Central Funds
Because this action is in effect brought on behalf of the State, the action should not cost the private prosecutor anything at all. All legal costs and other costs, including investigator’s fees, can be recovered from Central Funds at the end of the case irrespective of whether or not a conviction results, subject only to matters of abuse or misconduct.
Criminal prosecutions are massively underused in the computer and new technology sectors. One of the reasons is perhaps the inexperience of copyright lawyers in handling criminal actions. If used correctly, private prosecutions are an extremely effective deterrent. After all theft is theft. The computer industry should wake up and smell the coffee. If software companies are serious about stamping out piracy then perhaps they should take a leaf out of the book of some other industries and use the criminal law as well as the civil courts.
Nick Kounoupias is a partner at DMH Stallard solicitors specialising in copyright litigation. He was previously Head of Litigation in the music industry at the MCPS-PRS Music Alliance and managed its anti-piracy unit.