Under current UK legislation, pirates of physical media such as CDs and DVDs can be jailed for up to 10 years. On the other hand, those committing similar offenses online can be jailed for ‘only’ two years.
This has led to anti-piracy groups such as the Federation Against Copyright Theft choosing to pursue their own private prosecutions under the Fraud Act, which allows for much tougher sentences.
In an effort to fix this disparity, earlier this year a new draft of the Digital Economy Bill contained plans to extend the current ‘online’ prison term from two to ten years. The relevant section amends the Copyright, Designs and Patents Act 1988, and simply replaces the word two with ten.
On its way to becoming law, the Bill has been progressing through various stages in the House of Commons. This week, however, concerns were raised over the precise wording of the amendments. The image below shows how they currently stand.
Despite assurances from MPs that 10-year sentences are directed at large-scale commercial pirates, the text above does not clearly reflect that goal. In fact, just about any online infringer could be swept up in its net, a point not lost on Jim Killock, executive director of the Open Rights Group (ORG), who this week appeared before MPs.
In an exchange with Nigel Adams MP in the Commons, Killock said that ORG is concerned that ordinary members of the public could be affected by the amendments.
“We are worried about the impact of this on people who should not be criminalized and who we thought the Government were not trying to criminalize in this case,” Killock said.
“Our position is that if the Government are going to extend the sentence and have the same sentence online as offline for criminal copyright infringement — that is to say, 10 years — then they need to be very careful about how the lines are drawn, because the offenses are quite different.”
Killock said that offline criminal copyright infringement is all about criminal gangs duplicating things like DVDs, but online things are harder to define because everything looks like the same act – publication.
“You put something on the internet, it is a publication. So how do you tell who is the criminal and who is the slightly idiotic teenager, or whatever it happens to be? How do you make sure that people who should not be threatened with copyright criminal sentences are not given those threats?” Killock asked the MP.
To illustrate his point, Killock spoke about the current state of copyright trolling in the UK by companies such as Golden Eye International.
“They have no specific knowledge that these people are actually the people doing the downloading, all they know is that somebody appears to have downloaded,” Killock said.
At this point Adams interrupted, stating that there’s no intent for the new legislation to affect regular file-sharers.
“The idea of the Bill is not to go after people who are downloading content, it is purely for those who are uploading content for commercial gain. That is the whole purpose,” Adams said.
“Unfortunately, that is not how the language of the offense reads,” Killock responded.
“The test in the offense is that somebody is ‘causing a loss’, which is defined as not paying a licence fee, or is ‘causing the risk of loss’, about which your guess is as good as mine, but it is essentially the same as making available, because if you have made something available and somebody else can then make a copy, and then infringe copyright further and avoid further licence fees, basically that is a criminal act,” the ORG chief explained.
“So file sharers, whether they are small or large, all appear to be criminal copyright thieves. Similarly, people who are publishing things on websites without a license are also potentially criminalized. Those things can be dealt with much better and more simply through civil courts and civil copyright action.”
So, to solve the problem of the legislation potentially targeting the wrong people, Killock suggested a tightening-up of the wording in the amendments.
“What we are calling for is either to get rid of those things which are attacking individuals and wrongly bringing individuals into scope, or to put thresholds of seriousness around the risk of loss and/or causing loss. Something like, ‘Serious risk of causing significant loss’ would be the way to deal with this. Similarly, ‘Causing serious loss’,” he said.
Even with this explanation, the MP didn’t appear to understand.
“If you are knowingly uploading creative content online for commercial gain, to my mind it does not matter whether it is 50 quid or 50,000 quid, you are knowingly stealing someone’s content,” Nigel Adams said.
“The commercial gain is not part of this offense. That is what I am saying,” said Killock.
“The offense is purely to cause loss — in other words, to not pay a license fee — or to cause risk of loss. There is no ‘commercial’ in it. So you have to put the threshold somewhere. You have an offense for the commercial activities and, separately, individuals who cause risk of loss or fail to pay a license fee.”
The Open Rights Group are to be commended for raising this issue in the House of Commons since as things stand, the wording of the legislation is wide open to abuse from aggressive rightsholders. Whether appropriate amendments will be introduced remains to be seen, but there is clearly a need to be more specific. If not, trouble could lie ahead.