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May 10, 2016
In July 2015 the Government consulted on increasing the maximum custodial sentence for criminal online copyright infringement offences from two to ten years.
Online copyright infringement is dealt with under s 107(2A) (communicating works to the public in the course of a business or to an extent prejudicially affecting the copyright owner) and s 198(1A) (infringing a performer’s making available right in a recording in the course of a business or to an extent prejudicially affecting the owner of such right) of the Copyright Designs and Patent Act 1988. These offences are currently punishable by a maximum of two years imprisonment (see ss 107(4A) and 198(5A)). By comparison, the maximum custodial sentence for infringement in respect of physical goods is ten years.
The consultation attracted 1,032 responses. The three main issues that the Government considered the most prevalent amongst the responses received were as follows:
- Strict liability: a large percentage of respondents were concerned that there is currently no requirement to prove an infringer had intent to cause harm in order for them to be considered culpable of the offence. This suggests that the offence contains an element of strict liability and may result in a person being liable for an offence where they had no intent to cause any harm. The Government responded by saying that the current offence requires that the person knows or has reason to believe that there is an infringement of copyright and therefore ensures that a sufficient mental element needs to be demonstrated in order to bring a successful prosecution. Further, there are already a range of safeguards in place to limit the risk of a very low level infringer being subjected to a high penalty in practice, for example, infringement must be proven to the criminal standard, i.e. beyond reasonable doubt. However, the Government accepted that there were concerns and said that the policy intention is that criminal offences should not apply to low level infringement that has a minimal effect or causes minimum harm to copyright owners, in particular where the individuals involved are unaware of the impact of their behaviour.
- Affect prejudicially: many respondents felt that the term “affect prejudicially” was too vague when determining the extent to which a copyright owner needs to be affected before an offence is committed. It was argued that a single infringing file could fulfil this requirement in some circumstances (if widely shared subsequent to the infringement, for example), therefore setting an unacceptably low threshold for committing the offence. The Government said that it did not consider there to be a high risk of this happening. However, it agreed that the undefined term “affect prejudicially” could give rise to an element of ambiguity.
- Maximum custodial sentence: concerns were also raised about the proposed increase in maximum sentence, which was criticised for being the same or higher than other serious offences such as rape, some firearms offences, rioting and child cruelty. The Government said that a maximum sentence of ten years would allow the courts to apply an appropriate sentence to reflect the scale of the offending. Capping the maximum available sentence at a lower level would unnecessarily limit the ability of the courts to apply appropriate sentences in the more serious cases of copyright infringement, for example where thousands of the latest films are released onto the internet.
Accordingly, the Government intends to introduce to Parliament at the earliest available legislative opportunity re-drafted offence provisions addressing the strict liability and “affect prejudicially” issues in addition to increasing the maximum custodial sentence to ten years. To read the Government’s response in full, click here.