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