by Andy Johnstone writing on the 1709 Blog
Some considerable time after the Gowers Review (pdf) recommended (recommendation 36) that the maximum term of imprisonment for online criminal infringement should be increased, the IPO has launched a consultation (pdf) on whether the term should be raised from the current 2 years to a maximum of 10 years. In an effort to stick to its policy of evidence-based decision making, the consultation document exhorts would-be respondents to say rather more than just Yes or No when replying. However the same document is very thin on justification, its argument being mainly the fact that the penalty for infringing copyright in physical objects or designs is 10 years and so it would be neater if the penalty for online piracy was the same.
Would-be respondents therefore need to go to the 98 page Report on the subject commissioned, and published in March 2015, by the IPO, for some more detail about the pros and cons of the proposal.
While there is no denying that online piracy remains a significant problem, one can’t help feeling that this has more than a hint of political grand-standing. The former MP and IP advisor to the Prime Minister, Mike Weatherley put it like this:
“There is currently a disparity in sentencing between online and offline crime that needs to be harmonised. This sends out all the wrong messages. Until this is changed, online crime will be seen as less significant than traditional theft”. (My added emphasis).
While deterrence is all about sending messages, one has to be clear about whether the target audience will in fact be impressed by such demonstrations of muscle flexing.
Given that Mr Weatherley’s remarks were contained in a report entitled Follow the Money, it could be argued that the current judicial initiative of using section 97A to take down or block sites containing infringing material, is cheaper, quicker and more effective than relying on the rather more ponderous and over-stretched criminal justice system, especially as in many cases it will need to rely on extraditing individuals from other jurisdictions. One has only to look at the Kim Dotcom saga to see how long criminal cases of that sort can take to get to court. In contrast, Mr Justice Arnold can knock out an injunction in a morning’s work. And of course criminal cases require a higher standard of proof compared to civil ones.
The Report provides some interesting analysis of the current situation with regard to past criminal cases in the UK:
“The available court data from 2006-13 makes it clear that over the last few years, all prosecutions and convictions under CDPA 1988 have been going down. Online offences constitute a small, and apparently decreasing, fraction of copyright prosecution activity as a whole. Separate evidence provided by the Crown Prosecution Service and Trading Standards showed that neither have brought any cases at all under the online provisions of CDPA 1988.” (second paragraph, page 5).
While I don’t have a problem with tidying up the law, and goodness knows the Copyright, Designs and Patents Act is in dire need of tidying up, just tinkering at the margins for political rather than good evidence-based reasons is not really constructive. Let us hope that the IPO make a better job of conducting this consultation that they did over the recently-quashed private copying for personal use secondary legislation. The consultation closes on 17 August 2015.
Penalty Fair can be accessed here