A new study commissioned by the UK Intellectual Property Office (IPO) examines whether the criminal sanctions for copyright infringement available under the Copyright, Designs and Patents Act 1988 (CDPA 1988) are currently proportionate and correct, or whether they should be amended.
While the Digital Economy Act 2010 increased financial penalties up to a maximum of £50,000, in broad terms the main ‘offline’ copyright offenses carry sentences of up to 10 years in jail while those carried out online carry a maximum of ‘just’ two.
In 2014, Mike Weatherley MP, then IP advisor to the Prime Minister, said that this disparity “sends all the wrong messages”, a position that was supported by many major rightsholders. The current report examines data from 2006 to 2013 alongside stakeholder submissions, both for and against a change in the law.
“Many industry bodies argue that higher penalties are necessary and
desirable and that there is no justification for treating physical and online crime differently. Other stakeholders suggest that these offenses are in fact different, and raise concerns about a possible ‘chilling effect’ on innovation,” the report reads.
One key finding is that court data from 2006-2013 reveals that prosecutions under the CDPA have actually been going down and that online offenses actually constitute “a small, and apparently decreasing, fraction of copyright prosecution activity as a whole.” In fact, the Crown Prosecution Service didn’t bring a single case under the online provisions of the CDPA 1988 during the period examined.
“While there have been prosecutions during recent years, these have either used alternative legislation (such as common law conspiracy to defraud) or been directed at clarifying the civil law position in the European Court,” the report notes.
“It is not clear that alternative legislation provides a satisfactory solution. By definition it does nothing to improve case law or understanding of the copyright issues.”
This lack of case law is seen as problematic by the Federation Against Copyright Theft. In recent years FACT has stepped away from public prosecutions under copyright law in order to pursue private prosecutions under other legislation such as the Fraud Act.