Physical counterfeiters can receive up to 10 years in jail under UK copyright law but should online pirates receive the same maximum punishment? A new report commissioned by the government reveals that many major rightsholders believe they should, but will that have the desired effect?

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.

“Public prosecutors have been reluctant for years to take online cases, not wishing to be the first to attempt what might end in failure I guess. As a result there is no case law,” says FACT Director-General Kieron Sharp.

“We need to still prosecute these cases so we often take them forward as private criminal prosecutions. However, these are serious cases and the two-year maximum sentence available downgrades the case in the eyes of the court who in any event cannot impose a sentence reflective of the crime.

“We therefore follow other legislation and thus ourselves do not establish case law, which leads the prosecutor in the next case to again dismiss the chances of success.”

For its part the Open Rights Group’s submission cautions against overly aggressive punishments that not only have the potential to affect those operating on the boundaries, but also those seeking to innovate.

“The proposals could have a larger effect on specific groups that operate at the limits of current copyright legislation, but are not mass infringers and would not be prosecuted under fraud,” ORG explains.

“Many internet innovators, prosumers, online creative communities that

create non-profit derivative works, fandom producers, etc. All these people – many of whom technically breach copyright in their activities – could find themselves facing prison sentences if making available carried a maximum sentence of ten years.”

So should the law be changed? As usual, the answer is far from straightforward.

“The argument put forward by the Open Rights Group and others, that physical and online offenses are not the same, is persuasive. However, the fact remains that these two offenses end up having a very similar detrimental effect on the rights holders, and the question remains whether the maximum penalties are set at an appropriate level,” the report notes.

“Whilst it is true to say that a consumer (or ‘prosumer’) can rapidly distribute content internationally without any criminal intent, it is also true that the logistical barriers to criminal activity are much lower online; the amount of investment a criminally-minded person needs to make in order to generate a serious level of disruption and harm is far lower.

“The absence of a suitable penalty for serious cases of online infringement (which are likely to be very much in the minority) is currently creating a distortion because it results in alternative legislation being used. Alternatives may be justifiable under the circumstances, but appear less well suited to the crime.”

Another question addressed by the report is whether a 10 year sentence would act as a deterrent. Awkwardly for the government it points out that following the increase to a maximum 10 year sentence for physical piracy in 2002, prosecutions actually rose before falling away in 2008.

“[The] data available on recent online offending is at such a low level that there is no deterrent case that can be made from it,” the report adds.

But while a change in the law is certainly preferred by some, there are alternatives. The report points to the takedown initiatives currently being employed by major rightsholders, including website blockades via local ISPs. Also upcoming is the Creative Content UK program which will see the public warned and educated when they’re spotted infringing copyright online.

Only time will tell whether a 10 year sentence will be seen as appropriate, but safeguards that only the most serious of crimes are viewed as worthy of a maximum sentence will have to be put in place, and that will certainly be more easily said than done.

Penalty Fair? Study of criminal sanctions for copyright infringement available under the CDPA 1988 – is available here (pdf). It’s a long read but definitely worth the effort.