Is Time Running Out for Serious Online Copyright Infringers?

The aphorism that the "wheels of justice turn slow but grind exceedingly fine" is well suited to the recent decision by the Intellectual Property Office ("IPO") on a consultation to match the custodial sentence of online copyright infringement to that of a physical copyright infringement, currently set at 10 years.

The IPO consultation, coming 9 years after the publication of the Gowers Review of Intellectual Property, takes the view that online copyright infringement, being as prevalent and costly to the 'infringed' party as physical copyright infringement, should have an equal sanction.

Gowers Review of Intellectual Property

Gowers Review of Intellectual Property, published December 2006, ("Review") rightly highlighted the developing importance of intellectual property and associated challenges. The Review focused on identifying whether the incumbent system at the time was suitable in promoting innovation whilst simultaneously allowing the ability to enforce and defend intellectual property rights.

The Review identified three areas of improvement:

strengthening enforcement of IP rights, whether through clamping down on piracy or trade in counterfeit goods;
reducing costs of registering and litigating IP rights for businesses large and small; and
improving the balance and flexibility of IP rights to allow individuals, businesses and institutions to use content in ways consistent with the digital age.

Included in the Review were a list of recommendations to achieve the above.  Importantly, recommendation 36 recommended the equivalency of penalties in online and physical copyright infringement.

IPO Consultation 2015

Following recommendation 36 of the Review, the incumbent Government chose not to make the custodial sentence of online and physical copyright infringement the same, instead it decided to increase the maximum fine from £5,000 to £50,000 (and later to an unlimited fine).  The decision not to increase sentence was predicated on the fact that there was desire to only imprison "serious and/or dangerous offenders" (it is perhaps no surprise as at this time (and subsequently - Independent) prisons were frequently being reported to be at bursting point - BBC).  This sent the message that online infringement did not fit this criteria.

The winds of justice have now changed, and a report released in March 2015 entitled "Penalty Fair?" stated that:

"Fundamentally, either online copyright offences are capable of causing serious harm, or they are not", and therefore, if it can be recognised that online offences can cause serious harm, they should be punished accordingly.

Subsequently, the Government has launched a consultation on plans to increase the maximum sentence for commercial-scale online copyright infringement from two to 10 years imprisonment. Proposals set out in the consultation will bring penalties for online offences into harmonisation with equivalent offences relating to the copyright infringement of physical goods.

In addition to making enhancing the penalties for committing the crime, it is hoped that having the option to impose such a stringent sentence will act as a deterrent in the future.

The consultation is open until 17 August 2015, and as no option has yet been put forward by the Government, the clock may well be running out on the perpetrators of serious online copyright infringement.

Creative Content UK Initiative Summer 2015

On a final note – the long awaited start of "Creative Content UK" will see a broad anti-piracy effort from ISP's and copyright holders. This Government funded initiative will aim to warn and educate illegal file-sharers in the hope of naturally decreasing rates of online copyright infringement over time.

The initiative has both Government and cross-party support and has been hailed as a great opportunity to raise awareness of piracy and copyright infringement.

Speaking to the BPI on 19 July 2015 – Former Business Secretary Vince Cable and Culture Secretary Sajid Javid announced the Government's support for this initiative and pledged £3.5 million in funding for the education awareness component of the campaign.

Vince Cable, said: "The creative industries in the UK are one of our brilliant global success stories. We have unrivalled creativity - from record breaking musicians to box office films - that excite and inspire people all over the world. Yet too often that content is open to abuse by some who don't play by the rules. That is why we are working with industry to ensure that intellectual property rights are understood and respected. Education is at the heart of this drive so people understand that piracy isn't a victimless crime - but actually causes business to fail, harms the industry and costs jobs."

Sajid Javid, said: "The Creative Sector is a key driver of the UK economy contributing £8m to the UK economy every hour and underpinning over 1.5m jobs. Copyright is the foundation on which the Creative industries stand and we must ensure it remains strong and continues to support the growth of the sector. The alert programme shows industry working together to develop solutions which support the long-term health of the UK's creative industries. It will play a central role in raising awareness of copyright and pointing people toward legal ways to access content and I welcome this effort."