Penalties for Online Infringement: SCL Response to Consultation

October 29, 2008

Under Recommendation 36, the Gowers Review suggested that there should be parity in penalties for both physical and online commercial infringement. The recommendation was that the maximum penalty for online commercial infringement should be increased to ten years’ imprisonment to bring it into line with the penalty for commercial dealing in (but not showing) pirated works. It also proposed that the maximum penalty for consumers infringing online to an extent that prejudicially affects the rights holder should also be extended to ten years. 

A further proposal to consider the introduction of exceptional statutory maxima in magistrates’ courts (above the current £5,000 maximum) was announced as part of Commitment 16 in ‘Creative Britain – New Talents for the New Economy’, published by DCMS, BERR and DIUS on 22 February 2008.

The Copyright and Enforcement Directorate sought views. A number of SCL members expressed views at a recent meeting and Nick Cunningham and James Rowlands of Wragge & Co LLP have drawn these together to create a formal response.

The response expresses the view that there are significant difficulties in enforcement in any event which urgently need to be addressed; in general the likelihood of enforcement is at present a more significant aspect of deterrence (or lack of it) for all but the largest infringers than the penalties available. An increase in the maximum financial penalties available for copyright offences would be welcomed but the response questions whether current sentencing is consistent or adequate in any event. Members note that there are currently no sentencing guidelines on copyright infringement and suggest that these are necessary and should be comparable with guidelines on trade mark offences.

The full response can be read here.