Why the IPO needs to change the criminal offence for online copyright infringement

The IPO has responded to your letters to the minister Jo Johnson MP about the new 10 year sentences for online copyright infringement.

In the bill, ten year sentences are available where online publication of a copyright work means that a “loss” has occurred (including not paying licence fees) or a “risk of loss” is created.

We do not think the IPO have adequately explained why they cannot or should not introduce a threshold for criminality.

The IPO says:

It is important to note that the criminal offences apply to making material available to others, not to those just downloading material to their computers. Anyone seeking to enforce their rights for the downloading of material would be unlikely to refer to this legislation. Ten year sentences would only be applied in the most serious of criminal circumstances. It is highly unlikely that small, unintentional infringement would be caught by this offence. [our emphasis]

As we have said, publication without a licence is often an intentional act, where people either know or ought to know that they are infringing copyright. The question is whether these usually minor offences are worthy of criminal sanctions?

Examples could include:

Using copyright pictures from other websites, such as images of politicians or famous buildings, on a personal blog or social media

Using images of musicians or actors found on news websites, for instance from award events, on a blog or social media

Sharing files (which includes uploading as well as downloading) via Bittorrent at small scale

In each case, a licence has not been paid, the user should understand they are infringing copyright, and they are causing further risks that other people might reuse or re-share the images or files.

In the case of file sharing, it is only ever detected when files are “uploaded” (and shared back to the copyright owner or their agent).

The acts appear to be criminal under the proposed offence. We understand that they are unlikely to be sentenced, or even prosecuted, but the question remains as to why these minor acts should be criminalised, rather than being subject to civil charges.

The risk of an increase of ‘trolling’ is considered to be low but the government will periodically review and respond to any concerns.

We may never hear about many threats sent privately. Gathering evidence of harm will be extremely difficult except in the most egregious examples of letters sent in their thousands.

The proposed offence creates new opportunities for trolls, while there is a simple way to remove this risk, which is to introduce thresholds. The statement says that:

It would not be practical for the government to set a specific level of loss or gain at which infringement becomes a criminal offence. This is because the circumstances of each infringement needs to be taken into account.

Our suggestions are not for “specific” levels of loss or gain, such as “acts causing under £200 of damages”.

Our proposal is to set a threshold of “commercial scale loss”, and revising “risk of loss” to “serious risk of commercial scale loss”. These are flexible rather than “specific”, so the government’s objection does not make sense to us.

If the losses are small, and the risks are minor, why should “circumstances” mean that an act should be criminal?

Our changes would give the public, lawyers and courts a clear indication that minor acts of file sharing or unlicensed online publication would be unlikely to meet the thresholds of “serious risk” or “commercial scale” losses.

This would protect people who received threatening letters – whether in bulk or privately, under the radar.

It is true that some minor acts of copyright infringement can be regarded as criminal today. The current offence criminalises “prejudicial effect”, which we agree is insufficiently narrow. The IPO argues that it has tried to narrow this by focusing on the intention of the infringer.

However, the proposed changes do not solve the original problem of criminalising ordinary internet users. Introducing the fuzzier “risk of loss” actually makes it more likely that grannies and teenagers will end up facing threats of criminal charges, perhaps agreeing to admit guilt, or simply paying up when faced with threats.

This change is small, and sensible, and we ask the government to look at this again.

You can email the minister Jo Johnson MP to tell him to change it before it is too late..