In early 2015 a study commissioned by the UK Intellectual Property Office (IPO) concluded that criminal sanctions for copyright infringement under the Copyright, Designs and Patents Act 1988 (CDPA 1988) should be amended to bring them into line with offenses such as counterfeiting.
The report triggered a proposal from the UK government that the maximum prison sentence for online copyright infringement should be increased to ten years. The current maximum of two years is not enough of a deterrent, it was argued.
In July 2015 the government launched a consultation aiming to gauge opinion on boosting penalties to ensure that online piracy is considered as “no less serious” than offline infringements.
This morning the government released its conclusions while confirming it will indeed be asking Parliament for a ten year maximum sentence.
In a published statement, Minister for Intellectual Property Baroness Neville-Rolfe says that more than a thousand responses (pdf) helped to shape the government’s decision to stand by its earlier calls for increased penalties. Demands for additional clarity will also be addressed.
“As a result we are now proposing changes that include increasing the maximum sentence, but at the same time addressing concerns about the scope of the offense,” Neville-Rolfe says.
“The revised provisions will help protect rights holders, while making the boundaries of the offense clearer, so that everyone can understand how the rules should be applied.”
The minister says that a number of safeguards are already in place to “limit the risk” that a “very low level” infringer could be subjected to a high penalty, including that infringement must be proven to the criminal standard of beyond reasonable doubt.
Addressing concerns raised by the consultation that unwitting infringers might find themselves subjected to draconian sentences when they had no intent to cause any harm, the government references a system that has been in place for some time at the Police Intellectual Property Crime Unit (PIPCU).
Without mentioning them by name, the report notes that “enforcement agencies and private prosecutors have a staged response system, encompassing education, ‘cease and desist’ notices, and domain suspension.”
In other words, those likely to be targeted by the ten year sentence are given advance warning by the likes of PIPCU, FACT and the BPI, that they’re treading on thin ice.
The government also addresses concerns that the term “affect prejudicially” is too vague when used to describe the extent to which a copyright holder needs to be affected before an offense 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 offense,” the government explains.
The government’s position is that minor infringement does not lead to a criminal prosecution but it does concede that the term “affect prejudicially” has the potential to “give rise to an element of ambiguity.”
Perhaps predictably the consultation raised concerns that a maximum sentence of ten years would place infringement alongside serious offenses such as rape, firearms offenses and child cruelty.
Nevertheless, the government feels the sentence is warranted and uses the case brought against several release group members last year as an indicator that while ten years is a maximum, it would only be utilized in the rarest of cases.
“The Government believes that a maximum sentence of 10 years allows the courts to apply an appropriate sentence to reflect the scale of the offending. An example where copyright infringement was deemed to warrant longer than a 2 year sentence is where five defendants received sentences totaling 17 years for releasing more than 2,500 of the latest films onto the internet,” the government writes.
“They were prosecuted under the Fraud Act, where the highest sentence was four and a half years. 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.”
The government says it will now introduce its re-drafted offense provisions to Parliament at the “earliest available legislative opportunity.”