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Prison for using KaZaA? Surely not in the UK…

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Britain passed legislation on Friday to implement the controversial European Copyright Directive. As well as giving new protections to DRM and anti-copying technologies, it creates an offence that could, at least in theory, be committed by using a P2P service like KaZaA.

It may not be the intention of the Government, nor of its Copyright Directorate, the Patent Office department responsible for drawing up the implementing regulations; but that does not change the fact that this will be written into our laws.

The Directive was due to be implemented in the UK by 22nd December last year but has been repeatedly delayed. The Copyright Directorate blamed the delay on the complexity of the changes.

For the companies behind the P2P services, the new regime gives no cause for panic, says Struan Robertson, editor of OUT-LAW.COM, the IT and e-commerce service of international law firm Masons. "The law on the provision of P2P services was ambiguous before and it remains ambiguous," he said. "But those using the services in this country are facing a new threat."

In the US, the RIAA has sued numerous individuals in high profile civil actions based on copyright infringement. In this country, the British music industry has long had the legislative powers to do the same – but has not shown the inclination to sue individuals acting for non-commercial purposes.

"Under Britain's existing legislation," explains Robertson, "it infringes copyright to convert a song from a CD into MP3 format, or even just to copy a CD to cassette to play in your car. There is a widespread misconception that this is legal in the UK. It's not. It is legal in many other countries – the US, France and Germany, for example. But Britain has long resisted giving individuals a 'private use' exception in its copyright laws."

So the British music industry could sue those who make and swap MP3 files using services like KaZaA. But the British Phonographic Industry has to date taken a more understanding approach than its US counterpart, having taken into account the paucity of legitimate music download services to date.

But from 31st October, the new regime introduces a new threat for P2P fans: prison. "There's no suggestion that this is what the new law is intended to catch, and it's not something that the European Directive demands; but the wording could be interpreted this way," says Robertson.

The relevant provision states:

"A person who infringes copyright in a work by communicating the work to the public –

(a) in the course of a business, or

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

commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work."

Robertson said: "It could be interpreted under these new Regulations that you are now committing a criminal offence when you use KaZaA or other P2P services. You may not be acting in the course of a business; but by making a music file available for download for any other users of your chosen P2P network, you are communicating the work – potentially at least – to millions, i.e. to an extent that the music industry could say is prejudicing its rights."

The offence carries a penalty of a fine or imprisonment for up to two years, or both.

OUT-LAW.COM asked the Copyright Directorate about this potential to prosecute individuals for using file-sharing services. A spokesperson said it would be for the courts to interpret the point but that it did not intend for individuals' non-commercial activities to be criminalised.

"It's surprising," said Robertson, "that this provision is so vague, given that the law was drafted when the music industry's problems with P2P were so well publicised. The law gives no guidance on what impact file-sharing would need to have on a copyright holder to be 'prejudicial'."

He concluded: "There is nothing to suggest that prosecutors will want to use this law to cut the use of file-sharing services – it's much more likely that any action in future will be taken under civil laws. But if the law is not intended to be used against individuals' non-commercial activities on the internet, why does it exist?"

The new Regulations are available at:
www.legislation.hmso.gov.uk/si/si2003/20032498.htm

© copyright 2003 OUT-LAW.COM

More information is at:
www.patent.gov.uk/copy/notices/2003/copy_direct3.htm

See also: Copyright Directive implemented in UK law, OUT-LAW News,

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