In 2015, the UK Government announced a controversial plan to increase the maximum prison sentence for online copyright infringement from two to ten years.
The proposal followed a suggestion put forward in a study commissioned by the UK Intellectual Property Office (IPO). The study concluded that criminal sanctions for online copyright infringement available under the Copyright, Designs and Patents Act 1988 (CDPA 1988) should be harmonized with ‘offline’ penalties, such as those available for counterfeiting.
“By toughening penalties for commercial-scale online offending we are offering greater protections to businesses and sending a clear message to deter criminals,” then Intellectual Property Minister Baroness Neville-Rolfe said at the time.
In July 2016, the government published a new draft of its Digital Economy Bill which duly proposed an extension of the current prison term of two years to a maximum of ten.
Throughout the entire process of passing the legislation, the government has insisted that ‘regular’ members of the public would not be subjected to harsh punishments. However, that is not how the legislation reads.
As detailed in our earlier article, anyone who makes infringing content available to the public while merely putting a copyright holder at risk of loss, is now committing a criminal offense.
There are a number of variables, but this is the relevant part distilled down for the average file-sharer who downloads as well as uploads, using BitTorrent, for example.
A person…who infringes copyright in a work by communicating the work to the public commits an offense if [the person] knows or has reason to believe that [they are] infringing copyright in the work, and…knows or has reason to believe that communicating the work to the public will cause loss to the owner of the copyright, or will expose the owner of the copyright to a risk of loss.
Earlier this year, the Open Rights Group launched a campaign to try and make the government see sense. ORG did not dispute that there need to be penalties for online infringement but asked the government make amendments to target large-scale infringers while protecting the public.
“Our proposal is to set a threshold of ‘commercial scale loss’, and revising ‘risk of loss’ to ‘serious risk of commercial scale loss’. These are flexible rather than ‘specific’,” ORG said.
But the group’s appeals fell on deaf ears. No one in the law-making process was prepared to make this minor change to the Digital Economy Bill, even though legislation already exists for punishing even the smallest of copyright infringements through the civil courts.
As a result, the bill received royal assent last week which means that the country’s millions of small-time copyright infringers are now criminals in the eyes of the law.
Worst still, depending on the whims of copyright holders, any one could now be reported to the police for sharing even a single movie, an offense (as painted in our hypothetical piece in March) that could result in years in jail.
The government says that won’t be allowed. We’ll see.