Digital Economy Bill As it promised in the Queen’s Speech – and as first revealed here – legislation will extend the maximum penalty for industrial scale online copyright infringement from two to 10 years.
This is in the hope that criminal copyright cases are actually brought under copyright law. Because the maximum sentence is currently only two years for online piracy and ten for physical piracy, recent online piracy cases have been brought under conspiracy to defraud laws, not copyright law.
For example, five members of a movie release group received seventeen years imprisonment between them – far less than 10, but more than two, which is all the judge could have slapped them with under existing copyright law.
So the move from two to 10 brings online piracy in line with physical piracy, which already carries a penalty of 10 years. The IPO explained in May that it was intended to deter “egregious” (e.g. industrial scale) infringers, not teenagers in their bedrooms. Criminal cases are hugely expensive, and require the CPS to be convinced there's a crime and a good likelihood of a successful prosecution - and those thresholds haven't changed.
The section of the law on copyright infringement liability will change from:
(2A) A person who infringes copyright in a work by communicating the work to the public —
(a)in the course of a business, or
(b)otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,
commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work.
To the following:
“(2A) A person (“P”) who infringes copyright in a work by communicating the work to the public commits an offence if P —
(a) knows or has reason to believe that P is infringing copyright in the work, and
(b) either— (i) intends to make a gain for P or another person, or
(ii) 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.
Few copyright codes in the world include such wording, however. If you make a copy but don’t have a license, then you’re infringing. The wording potentially invites infringers to defend casual 'home' infringement since “there are a million copies out there already” and one extra copy for personal use didn’t harm the rights-holder. Opportunistic lawyers could have a field day.
The IPO sought to allay hysterical reports that the increased maximum penalty would not ensnare the casual downloader in their shed:
A rights-holder only brings an expensive prosecution, with costs running into the hundreds of thousands of pounds, if it thinks it can produce a positive result with a deterrent effect. Much as copyfighters would like to think that imperils the guy in the shed at home, that just isn't financially justifiable. It would also require other changes in the law, as the IPO points out.
Still, expect click-baity headlines from tech blogs and wild-flights of paranoia. Maintaining a persecution complex is a core faith for copyfighters - dating back to the bad old days when the recording industry still had some lobbying muscle, and the giant tech platforms like Google were still relatively new. And if the persecution isn't real, they just make it up anyway. ®