Consultation on Online Copyright Infringement Penalties

August 6, 2015

If you have spent too long on the beach this summer, you may have missed the announcement by the government on 18 July of a consultation, which ends on 17 August, on plans to increase the maximum sentence for commercial-scale online copyright infringement from two to ten years’ imprisonment. This would bring penalties for online offences into line with equivalent offences relating to the copyright infringement of physical goods.

The Intellectual Property Office states that the proposed new measures will make clear that online copyright infringement is no less serious than physical infringement.

Intellectual Property Minister Baroness Neville-Rolfe said:

‘The government takes copyright crime extremely seriously – it hurts businesses, consumers and the wider economy both on and offline. Our creative industries are worth more than £7 billion to the UK economy and it’s important to protect them from online criminal enterprises. By toughening penalties for commercial-scale online offending we are offering greater protections to businesses and sending a clear message to deter criminals.’

Head of the Police Intellectual Property Crime Unit (PIPCU), Detective Chief Inspector Peter Ratcliffe said:

‘Online or offline, intellectual property theft is a crime. With advances in technology and the popularity of the internet, more and more criminals are turning to online criminality and so it is imperative that our prosecution system reflects our moves to a more digital world. PIPCU therefore welcomes today’s consultation for harmonising the criminal sanctions for online copyright infringement.’

At present, commercial-scale online copyright infringement is punishable by a maximum of two years’ imprisonment, by comparison the maximum sentence for infringement of physical goods is 10 years. The UK’s creative industries, including film, television and music, are worth £7.1 billion per year to the UK economy and support more than 1.6 million jobs. The IPO states that the new proposals will offer the creative industries further protection from large-scale online copyright offenders and act as a significant deterrent.

Not everyone thinks it is so clear and simple. The Open Rights Group (see below) consider that a number of issues have been missed from the IPO’s presentation of the pros and cons:

(1) “Making available” is a much wider and easier activity to engage in that offline copying for distribution, including file sharing, linking and hosting;
(2) Copyright infringement is a strict liability matter, which makes harsh penalties quite dangerous, as it fails to take into account the intent of the infringer;
(3) The actual offence includes non-business users, who “affect prejudicially the owner of a copyright” – a term that is vague, and subject to the court’s understandings of the value of online infringement, which they have a lot of trouble understanding, tending to accept highly inflated estimations
In short, the ORG feels that the offence is too broad as it stands. Longer sentences create greater possibilities for inappropriate threats of criminal proceedings and make it harder for individuals to defend. There is a blog outlining the ORG concerns and they are asking people to respond via an online action.

The consultation can be accessed here.

Laurence Eastham writes:

The short period allowed for the consultation and the very clear arguments for the increase suggest that the consultation is something of a rubber-stamp exercise. The arguments for the change even pray in aid a commitment in the Conservative Party manifesto to ‘toughen sentencing and use new technology to protect the public’, presumably on the basis that the words ‘sentencing’ and ‘technology’ are both mentioned in that phrase, since the commitment seems otherwise irrelevant.

Having said that, the Gower Report’s recommendation and the apparent inconsistency leaves me feeling that the main reason for opposing the change might be that it is an irrelevance since large-scale online criminality usually involves conspiracy and/or fraud charges. I suppose the other main argument against is that increasing the prison population by incarcerating more non-violent offenders is rarely a good idea, for them or society as a whole; in my book, that’s a pretty strong argument but I don’t think it will impress the IPO.