Go up to, say, ten random people and ask them whether they think copyright infringement should be a criminal offence and your answers will range from a diatribe about how it's little more than theft to a nervous glance around followed by hiding all their hard drives along with their five-figure illicit MP3 count. Now, understandably, with different jurisdictions having different takes on whether such activities should be offences at law, the realities may vary quite widely indeed. (Although I must mention that, given things such as the Duration Directive and other EU directives that have surfaced in recent years, there is now a conscious movement afoot towards copyright harmonisation. But that's another node.) Given that I'm a resident of England, this writeup will concern itself with English law. I can't presume to speak entirely for other countries. And, as always, I can't stress enough that if you are sued or prosecuted for anything related to intellectual property, better to go and get independent professional legal advice rather than using my writeup as the basis for your case.

In this writeup, I intend firstly to describe the state of criminality with regard to copyrights in the UK, then to comment on how effective, equitable, and enforceable those provisions are, and if they go to the correct extent in criminalising such acts.

Current criminal provisions in the UK for copyright infringement.

Contrary to the beliefs of many British citizens, the creation or distribution of an infringing copy will not land you on a criminal charge, though it can get you sued. Indeed, most litigation under the Copyrights, Designs, and Patents Act 1988 is in the civil courts, where (usually) the publisher of a work goes after those individuals who make unauthorised copies of it. It's usually the publishers, incidentally, because it is they who are the actual owners of the copyright, having bought them from the author, who still will maintain moral rights in the work assuming he or she has asserted them under section 78 of the above Act. Infringement can be either primary or secondary, and both are actionable at law, although the available remedies are different respectively.

Infringement, thus, is illegal, but as a tort rather than a crime. Indeed, most intellectual property cases (and thus the precedent set by them) are dependent almost entirely on who actually bothers to sue. And given the expense of bringing such a legal action, publishers (albeit with exceptions) would not bother with many cases of small-scale infringement such as against individual p2p file sharers, since the damages they could gain, as set out in section 97 of the CDPA, would not be worth it; indeed, it is quite possible that many such actions are settled out of court with, for instance, destruction of the infringing copies and/or nominal damages. Generally speaking, section 97 instructs courts to award damages based on "the benefit accrued to the defendant" the infringement and the "flagrancy" of the infringement.

The Act, however, does set out offences relating to infringement in section 107, which are specified and discussed below:

107.—(1) A person commits an offence who, without the licence of the copyright owner—

(a) makes for sale or hire, or

(b) imports into the United Kingdom otherwise than for his private and domestic use, or

(c) possesses in the course of a business with a view to committing any act infringing the copyright, or

(d) in the course of a business —
(i) sells or lets for hire, or
(ii) offers or exposes for sale or hire, or
(iii) exhibits in public, or
(iv) distributes, or

(e) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work.

Clearly, this legislation requires some form of profit to be made from dealing in infringing copies for any criminal conduct to have been committed. So the dodgy geezer who can hook you up with the latest yet-to-be-released DVD is certainly committing an offence under subsection (a). But the most controversial subsection, however, of this statute is subsection (e) as quoted above. In my view, this is, as it stands, extremely open-ended. How large an extent is enough to "affect prejudicially" the copyright owner? Case law on this topic is rather thin on the ground, but I suspect that only in the most serious mass infringement cases will this law be invoked.

Subsections 2 and 3 set out offences of an accessory nature to the actual infringement offences, such as producing items which are "specifically designed or adapted for making copies of a particular copyright work." Now at first glance, this appears to criminalise file sharing networks; however, they have to be "specifically adapted" to the creation or distribution of infringing copies. Whether they are is very much open to debate in my view.

A few comments.

There are, of course, multiple questions that we should ask re. these offences. Firstly, at whom are they aimed at catching? It's quite evident that section 107(1) is primarily aimed at those who sell and trade in pirate videos and software - which is perfectly justifiable as a criminal offence in my view, since they are, in effect, defrauding the customer, who may be led to believe that he is getting a genuine article when he is, in fact, acquiring a counterfeit which may or may not be fully functional - it could, in fact, be considered similar to the offence of obtaining property by deception as set out under the Theft Act 1968, especially if the seller has attempted to pass it off as genuine and authorised by the copyright holder. There is also the moral aspect to the criminalisation of selling or trading infringing copies, since the copyright owner will not be making any money from the sale of that copy (and the author will not gain any royalty rates.)

An interesting legal question arises as well from subsection (b) of the above statute. The reader may or may not be aware of a Russian MP3 download site called Allofmp3.com, which offers digital music downloads at extremely competitive rates ($0.02/megabyte of material downloaded) and which are free of digital rights management. This site exploits a loophole in Russian copyright law that means that, in essence, digital music files are not considered to be infringing copies if certain formalities are observed involving licencing from the Russian equivalent of the FCC. A loophole allows digital radio and similar services to become licenced by this body, and thus offer mp3s at such a competitive rate. However, this loophole would not work under English copyright law, and if the server was located here such a service would not last very long before it was sued into oblivion. The question is whether an mp3 file can constitute an import under this section.

Another question regarding the criminal provisions set out for copyright infringement is whether simple tortious infringement should constitute a crime in the UK. There are those people who believe that the production of an infringing copy of a copyright work is equivalent, morally, to stealing; those people therefore think that it should be legally equivalent to theft as well and should carry similar penalties under criminal law. However, whereas the crime of theft (or obtaining property by deception, for that matter) deals with tangible property, such a crime would deal with intellectual property - which is by its nature intangible. This would make the drafting of an offence which has an equivalent actus reus to that of theft rather difficult, since one of the most important aspects of that offence is that the perpetrator must intend to "permanently deprive" the original owner of the stolen item. Infringement on the copyrights of another cannot physically deprive them of it since it is, by its nature, the creation of an unauthorised copy; the copyright holder still possesses the work.

Another objection that those who think copyright infringement tantamount to theft often raise is that they are denying the copyright holder and/or the author of the money that they would have earnt from the infringer's purchase of an authorised copy of the work. However, while this argument may carry some moral weight, legally it should not pass. The reason for this is simple - for theft to have been committed, the victim must have the property (in this case, money) in the first place. Since the author only would have gained that money had the infringer bought a legal copy of the work, the money cannot have been stolen since it was never theirs to steal in the first place. English law has never allowed, to my knowledge, hypothetical losses to form the basis of a criminal case. It has allowed such actions in contract (with the doctrine of expectationary losses) and in tort (with the principle that a loss of opportunity is remediable) but not in criminal law.

There is also the question of the practicality of simple tortious infringement being criminal. How could it be effectively - and legally - policed with the current powers that the authorities have regarding search and seizure? Also, there are moral and ethical questions as to whether the police should be allowed to seize items that are solely and obviously intended just for personal use. It may well be that by only criminalising the organised distribution for profit of infringing copies, the Act realises that simple infringement would be difficult, if not impossible, to effectively police.

On that note, why should the State be responsible for enforcing rights between private parties? In most areas of civil litigation - contract, tort, real property (land), etc., it is the responsibility of the individual to enforce his rights under the appropriate law. Indeed, there are even certain instances in which, when an individual has rights over something and he neglects to enforce them when those rights are impugned, he will lose those rights, for instance, in adverse possession cases in land law, the Limitation Act 1980 says that if a squatter stays on someone's land for 12 years and the landowner does not enforce his property rights to exclude that squatter from the land, the squatter will gain an equitable interest in the land. Similarly, in contract law, when a breach of contract occurs, the administration will not step in and litigate against the contract breaker automatically; it is the responsibility of the plaintiff to bring an action against them. Therefore, in cases of infringement, the infringer has impugned a property right of the author, and thus it should be the author's responsibility to enfore his or her rights against the infringer. Indeed, if there was a crime that copyright infringement was closest to, it would be criminal trespass rather than theft.

Finally, if simple infringement were criminalised, it would allow the same individual to be punished, as it were, twice for the same conduct. Suppose I had an account on a file sharing network and I uploaded an album by, say, DragonForce, to 10 other users on that P2P network. If their record label found this, they could, under current law, sue me for copyright infringement, and gain monetary damages and an injunction to destroy the infringing copies I had made - so, the MP3 files of the album on my computer. However, if it were also a criminal offence, the Crown Prosecution Service could then mount a criminal case, using the decision in the civil courts as evidence against me. This would not be fair by anyone's standards, since I have already made reparations against the party I had wronged by infringing their intellectual property rights.

Now it is true that there are instances in the UK in which the same conduct is both criminal and tortious - for instance, violence towards another individual could constitute both an offence under the Offences Against the Person Act 1861 and a tort of battery; or in the Herald of Free Enterprise situation, the ferry company, Townsend Thoresen, were both vicariously liable of a criminal omission which led to manslaughter and a tort of negligence. However, in such instances, the criminal courts are used primarily against legal persons (individuals) and the civil courts against moral persons (corporations). Therefore, under current CPS policy, a criminalisation of simple production and non-profit distribution of an infringing copy would render the scope for civil litigation of such matters all but redundant since most small-scale infringers are individuals. As an aside, this form of duality would be more at home in French law, where in criminal cases there is often an element of reparations ("dommages et interêts") in the sentencing and, in such instances, often there is extra debate in court to determine the extents of these reparations to the victim (referred to as the "matière civile" as opposed to the "matière pénale" of the main criminal case.) However, while this French method may seem to be a valid compromise with regard to the criminalisation of copyright infringement, there is little to no legal framework in England for it to be implemented effectively.

Conclusion.

It is very much accepted that copyright and its fellow intellectual property rights are necessary in today's society, and it is only right that there should be statutory provision to deal with the procedures, remedies, and qualification of such rights. However, the criminal aspect of such legislation is debatable. While those in favour of extending such criminal provisions may like to argue morality, it is worth remembering that in the intellectual property law of the UK, it is the economic justification that has historically been considered most important - that is, that people's right to exploit their intellectual property for profit is more important than their moral rights regarding the work. (Contrast this with continental copyright laws, in which the moral rights are considered more important.) Accordingly, it only makes sense that the recovery of losses through such infringement should be more important than imposing criminal sanctions on such individuals. Conversely, however, the current criminalised copyright infringements should not be rolled back since the individual is profiting through the fraudulent misrepresentation of his illicit warez to the public, which is homologous to other criminal offences in the UK. Therefore, I would oppose any tightening of criminal law with regard to copyright infringement in this manner.


Works referenced/cited -
Bentley & Sherman,
Intellectual Property Law
Statutes cited from www.hmso.gov.uk and are Crown Copyright

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