The Digital Economy Bill 2016-17 is set to increase the maximum sentence for online copyright infringement to 10 years. This will harmonise the penalties for online and physical copyright infringement. Currently under sections 107(2A) and 198(1A) of the Copyright Designs and Patents Act 1988, the maximum sentence for online copyright infringement is 2 years.
What does the Digital Economy Bill say?
As currently drafted, the Digital Economy Bill provides that for someone to be criminally liable for communicating copyright works to the public (e.g. uploading), they need to:
- Know or have reason to believe that they are infringing copyright in a work by communicating to the public; and
- intend to make a gain for themselves or someone else; or
- know or have reason to believe that communicating the work to the public will cause loss to the copyright owner or that it will expose the copyright owner to a "risk of loss".
The draft Bill states that "gain" or "loss" means in money terms and can be temporary or permanent and the "loss" element "includes a loss by not getting what one might get".
The provisions in the Digital Economy Bill as currently drafted have been criticised for being vague, broad, disproportionate and open to abuse. Many have been concerned that the threshold for criminal liability is far too low and that small scale infringers or even ordinary Internet users could face a long custodial sentence. There have been suggestions during the consultation process to change the definition of criminal liability to exempt such users and to reduce the 10 year maximum sentence.
The Open Rights Group (ORG) has strongly opposed the increased sentence suggesting that:
- It may result in a growth in 'copyright trolls' who will threaten court action for very minor infractions; and
- Minor copyright infringement is being criminalised rather than left to the domain of civil liability.
ORG proposed that the threshold for the new crime should be that there is a 'serious risk of commercial scale loss' which would be a more flexible measure of determining loss.
The Government has responded to the ORG stating that no changes will be made to the increase in sentence for the following reasons:
- Copyright owners are legally entitled to enforce their rights and this may include contacting members of the public who are alleged to have infringed their rights. If such contact is made in a threatening or harassing way, then the member of the public contacted can report the solicitors in question to the SRA and the SRA has previously taken action in this respect.
- The risk of an increase in 'copyright trolling' is considered to be low, however, will be periodically reviewed and any issues responded to.
- The criminal offences only apply to those making material available to others, not to those just downloading material to their computers which would most likely be covered by other legislation.
- The criminal offences suggested penalise communicating a copyright work to the public and infringing a performer's 'making available' right and will be criminal where a person knows, or has reason to believe, that they will cause loss or expose the rights holders to a risk of loss in money. The offences focus on those actually causing harm either for monetary gain or a monetary loss or risk of loss to the copyright owner. A mental element has also 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.
- The ten year sentence would only be applied in the most serious criminal circumstances - it is highly unlikely that small inadvertent infringement would be considered an offence. Those who could rely on a copyright exception such as criticism or review or quotation would not be guilty of an offence.
- It would be impractical for there to be a specific level of loss or gain set out in the legislation as the circumstances of each infringement needs to be taken into account.
The Digital Economy Bill is approaching its third and final reading in the House of Lords which could provide an opportunity to make amendments. However, this seems unlikely given the justification the Government has given for its current drafting. A House of Lords Report stage (the stage before the final reading) is scheduled for tomorrow.
We will be sure to keep you posted on progress.
With thanks to Amelia Thomson for her contribution to this article.