Decades ago when the Internet was a distant dream, copyright legislation existed to protect content found in the physical world. As a result, most countries have robust legislation in place to tackle someone counterfeiting a CD or DVD, for example.
With the rise of online digital content, some of that legislation has been struggling to catch up. In the UK, for example, offline infringement is punishable by up to 10 years in jail, while online infringement currently carries a maximum two-year sentence.
Back in March 2014, Mike Weatherley MP, then IP advisor to former Prime Minister David Cameron, said that the disparity “sends all the wrong messages” and something should be done to correct it. Fast forward to today, and the UK is extremely close to making ten-year sentences for online infringement a reality.
The amendment contained in the Digital Economy Bill certainly ticks all the boxes as far as rightsholders are concerned. However, there is a serious problem for the general public.
As the draft law currently stands, anyone who makes available any amount of copyrighted content without permission will open themselves up to criminal liability, if when doing so they expose a copyright owner to the “risk of loss”. That definition is extremely broad and depending on how rightsholders choose to frame any infringement, prosecutions could have a worryingly low bar to entry.
This hasn’t gone unnoticed to the Open Rights Group, who have been putting the government under pressure to include specific wording in the legislation to ensure that a clear criminal threshold is written into the law. It also expressed concerns that the amendments could encourage more copyright trolls in the UK.
The government has now formally responded to ORG but not in any positive way.
“The criminal offenses penalize communicating a copyright work to the public and infringing a performer’s ‘making available’ right. Both of these acts are considered criminal where a person knows, or has reason to believe, that they are infringing the right and either intends to make a monetary gain, or knows or has reason to believe that they will cause loss or expose the rights holder to a risk of loss in money,” the government writes.
“These offenses focus on those causing harm either for monetary gain or a monetary loss or risk of loss to the rights holder. A mental element has been introduced which requires an intention to make a gain or knowledge or reason to believe that the copyright owner will suffer loss or be exposed to a risk of loss.”
As ORG points out in its response, many small-time infringements can be intentional, from using a photograph of a pop star on a personal site through to low-volume sharing music on torrent networks.
“As we have said, publication without a license is often an intentional act, where people either know or ought to know that they are infringing copyright. The question is whether these usually minor offenses are worthy of criminal sanctions?” the group writes.
“The acts appear to be criminal under the proposed offense. We understand that they are unlikely to be sentenced, or even prosecuted, but the question remains as to why these minor acts should be criminalized, rather than being subject to civil charges.”
It’s a question that the government doesn’t appear to want to answer, despite the relatively easy job of introducing a threshold for criminal behavior into the relevant Digital Economy Bill section.
“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’, so the government’s objection does not make sense to us,” ORG notes.
But despite these calls, the government remains unmoved.
“It would not be practical for the government to set a specific level of loss or gain at which infringement becomes a criminal offense. This is because the circumstances of each infringement needs to be taken into account,” it says.
The government’s comments on copyright trolling also raise concerns. While correctly noting that rightsholders are perfectly entitled to seek compensation when their rights are infringed, the government notes that those targeted have a support mechanism at hand, should they feel they are being bullied.
“Copyright owners are entitled to enforce their rights. On occasion this may include contacting members of the public who are alleged to have infringed their rights. Such approaches are entirely legal,” the government notes.
“However if done in a threatening or harassing way, members of the public can report the solicitors in question to the Solicitor’s Regulatory Authority (SRA). The SRA has taken action in previous such cases.”
The SRA has indeed taken action against at least one rogue solicitor, but this Achilles heel was quickly spotted by copyright trolling companies. Now, to avoid this kind of scrutiny, none of the trolls currently active in the UK use solicitors to contact the public, it’s all done by private companies. That means the SRA has no jurisdiction and the public has no body of support to fall back on.
Open Rights Group Executive Director Jim Killock informs TorrentFreak that the government’s resistance on both counts leaves the public open to exploitation and even imprisonment.
“ORG supporters asked for small and sensible changes to the Digital Economy Bill, which would reduce the risk of ordinary people facing the threat of criminal charges,” Killock informs TF.
“The IPO haven’t adequately explained why they cannot or should not introduce a threshold for criminality. Without these changes, we could see people being exploited by copyright trolls and threatened with prison sentences for minor offenses.”
The Open Rights Group are calling for supporters to keep up the pressure by emailing Jo Johnson MP, before it’s too late.