Some may recall the Queens’ speech at the opening of Parliament, when she announced that the government would do all it could to ensure Britain’s place at the forefront of the digital economy. For many businesses, that means strengthening protection for Intellectual Property rights.
The newly passed Digital Economy Act 2017 increases the sentence for online copyright infringement from 2 years, up to a maximum of 10 years, bringing it in line with the existing sentencing for physical copyright infringement. The Act also imposes a new requirement that a person must intend to make a monetary gain from the infringement, or else know or have reason to believe that the copyright owner will suffer a loss.
The question of criminal sanctions for copyright infringement has long been controversial: the Act’s predecessor, the Digital Economy Act 2010 (which was responsible for introducing fines of up to £50,000 for criminal offences relating to copyright infringement) also met with strong opposition.
Like its predecessor, the newly passed Act was passed in a febrile pre-election climate, during what is known as the “wash-up”, the term used to describe the accelerated parliamentary procedure in which legislation is rushed through Parliament before dissolution (as Bills cannot be carried over from one Parliament to the next).
Critics say the process leaves precious little time for proper Parliamentary scrutiny, and that the threshold for criminal liability in respect of copyright infringement is far too low, providing ammunition to copyright trolls, and fuelling the generally frowned-upon practice of speculative invoicing (i.e. the practice of sending threatening letters to broadband users, typically teenagers, demanding payment for suspected online piracy).
The government, on the other hand, has been at pains to emphasise that the intention behind the Act is not to impose lengthy prison sentences for minor infringements such as P2P file sharing, but rather to foster a deterrent effect against serious copyright infringement (estimated to cost the UK’s creative industries some £500 million per year).
A recent case, R v Wayne Evans  EWCA Crim 139, decided before the Digital Economy Bill 2017 became law, shows the court’s approach to deterrent sentencing in such cases. The defendant, Mr Evans, pleaded guilty to operating a number of websites that enabled users to access and download infringing copies of musical works, one of which had 168,000 users and over half a million downloads of UK Top 40 singles.
The only real issue in the case was what sentence Mr Evans should receive. He had no criminal history and profited very little, if at all, from running the sites (with the exception of the occasional PayPal donation).
Notwithstanding those points, the court sentenced him to 12 months in prison. His appeal, on the basis that the sentence had been too harsh, was rejected by the Court of Appeal, which emphasised the importance of creating a deterrent effect against the detrimental impact of copyright infringement on businesses and their profitability (the £500 million figure above refers).
Of course, the measures introduced by the Digital Economy Act 2017 (and its predecessor, the 2010 Act), are designed to foster a deterrent effect by increasing the consequences of getting caught and convicted. However, it should be remembered that securing a conviction in the first place is not always easy. IP infringement ranks low in the list of police priorities (in most cases, far below serious or even white collar crime), and deterrence is not the same thing as compensation.
For that the civil law might still offer businesses the best options: not only can the Court order the delivery up or destruction of infringing items, but it can grant injunctions restraining their future use, and award compensation for loss of profits or, in some cases, even additional damages where the infringement is flagrant.
To get advice on how to bring or defend copyright infringement actions, contact Christopher Walke at email@example.com or another member of our Intellectual Property and Business Protection team.