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Fine unlicensed software users, says BSA

Lobby calls for 'harder enforcement stick'

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Software industry lobby group the Business Software Alliance (BSA) has called for government to mandate stiff penalties for companies using unlicensed software.

The organisation says it wants a "harder enforcement stick" to ensure compliance.

The group, which represents many major software publishers, says the current legal regime is no disincentive to illegal users since those operating without licence cannot be penalised in the civil courts. It wants a punitive fine to be added to the cost of the purchase of a licence for infringing products, said the body's counsel, Graham Arthur.

"When we get in touch with a company about software they don't have a licence for we end up in a scrap because they go out and buy the licences and say that that is the case settled," said Arthur. "With a few wrinkles, that is more or less true. Judges in the UK court can't impose punitive damages, except in certain specific cases.

"What would be useful would be a damages provision like the one in Ireland which says that the judge can award whatever he feels like, taking into account the circumstances and what is fair," said Arthur. "We are certainly at the weak end of enforcement and to change behaviour we need a harder enforcement stick."

Currently, any company which uses software without a licence and is caught has to pay the licence fee that it ought to have paid in the first place, though there are much tougher penalties for counterfeiters actually trading in unlicensed software.

The body was not looking for the kind of punitive damages found elsewhere which charge double the retail price of software in damages, said Arthur, but the lack of a penalty for infringement was a major factor in bolstering the UK's piracy figures. "As much as anything that contributes to high rates of piracy in the UK," he said.

Arthur also said the BSA wanted the government to take more action to educate the market on software licences. "You do hear from the government that they are very supportive of intellectual property rights, but that doesn't mean anything unless something is done," he said.

The BSA earlier this year said around 80 per cent of the infringement cases it comes across are down to negligence and not to malice, and said that many firms neglected to keep software up to date in times of rapid growth. Arthur suggested that these firms need to hear from the government that they must ensure that their software licences are up to date.

The government last year asked former Financial Times editor Andrew Gowers to conduct a review of intellectual property and policy, and Arthur said the BSA had made its views clear to that review.

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OUT-LAW.COM is part of international law firm Pinsent Masons.

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