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Managers of websites offering illegal business software could face criminal proceedings under new laws due to come into effect from the end of this month, the Federation Against Software Theft (FAST) warned yesterday.

The new law, precipitated by the EU's Information Society Directive, makes it an offence to "communicate to the public" copyright works, such as software, if the person knew or had reason to believe that this would infringe copyright.

Until now, UK copyright legislation (principally the Copyright, Designs and Patents Act 1988) has been directed to illegal dealing in physical articles - such as CD Roms - rather than Warez (illegal software) sites as such.

In general, according to FAST, ISPs have taken down websites used for distribution of illegal software. However, mirror-sites can easily be established. Copyright enforces are pleased at the forthcoming introduction of law that allows them to target running pirate sites directly.

The new law (Copyright and Related Rights Regulations 2003) "offers the prospect of up to a two year jail term and fine to companies running such sites", according to Fast. The law also makes any director, officer or manager of companies operating such sites liable under the same offence.

Paul Brennan, General Counsel at FAST, said that the removal of uncertainties within current law means "enforcement bodies and the police can at last begin to target these illegal sites with confidence."

Robin Fry, intellectual property partner at city law firm Beachcroft Wansbroughs, explained: "The existing criminal sanctions date from 1911 and were principally to criminalise physical copies. This has rapidly become meaningless in the digital age - and the new rules put beyond doubt the criminality of offering illegal downloads."

But trade in illegal software over peer-to-peer networks remains a grey area.

Fry commented: "Where it's a member of the network sharing files - rather than the website owner himself - the website may not itself be handling any illegal copies. But, in truth, such networks are no different from the organisers of car boot sales.

"If they know what is going on then they have to take the rap", he added. ®

The new Copyright and Related Rights Regulations 2003 include a specific extension to existing criminal provisions.
This states that "a person who infringes copyright in a work by communicating the work to the public - (a) in the course of business, or (b) otherwise than in the course of business to such an extent as to affect prejudicially the owner of the copyright, commits an offence if he knew or had reason to believe that copyright in the work would be infringed".
[Proposed Section 107(3A)]

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