Should online pirates get the same sentences as offline ones?

New research commissioned by the UK Intellectual Property Office (IPO) has asked whether a decade behind bars would deter online pirates.

Physical copyright offences carry a maximum 10-year penalty, but online infringers can only be sentenced for up to two years. The report, carried out by Martin Brassell and Ian Goodyer for the IPO, says that this means online copyright infringement “does not fall into the category of serious arrestable offences”. But responses from rights holders were mixed.

“Opinions of individual rights holders who have been victims of online copyright theft are divided. Many industry bodies argue that higher penalties are necessary and desirable and that there is no justification for treating physical and online crime differently. Other stakeholders suggest that these offences are in fact different, and raise concerns about a possible ‘chilling effect’ on innovation,” says the report.

Mike Weatherley MP, IP adviser to the prime minister, said: “There is currently a disparity in sentencing between online and offline crime that needs to be harmonised. This sends out all the wrong messages. Until this is changed, online crime will be seen as less significant than traditional theft.”

This does indeed seem to be the case according to the IPO report. It says cases are not taken to court due to a lack of confidence in the prospect of a successful conviction because of an absence of case law and lack of perceived seriousness in online offences. Rights holders have also been taking the more practical approach of working with the Police Intellectual Property Crime Unit (PIPCU) to take down offending websites. However the report notes that this “may not lead to permanent removal, as proxy sites are prone to appear soon afterwards”.

“I’m a musician,” explained one interviewee in the report. “Since 2000 I have seen an estimated 75% drop in sales and income. I have no doubt whatsoever that the well-known practice of downloading from pirate sites is the cause. Despite numerous take-down notices sent, invariably the same material reappears on these sites within days. I have now almost given up releasing music 'for the consumer' and concentrate entirely on writing music for film, TV and commercials.”

“For photography it’s an epidemic. Take-down notices require a lot of time and are not always effective,” added another creator quoted in the report.

While many authors and rights holders did not want to criminalise consumers, some were keen to point the finger of blame at search engines:

“A great deal is ignorance rather than flagrance. Metadata stripping of images is key in this. Images are shared and re-shared and can often end up on social media sites in an assumed orphan work status. Apart from further dissemination from semi-commercial enterprises, these can be picked up by more mainstream companies who may publish without proper diligence. Google, for example, is caching all images it finds without rights holder permission. It is the biggest facilitator of illegal sharing but it does not seem to have any liability,” said a photographer in the report.

The IPO study concludes that if a new maximum jail sentence is to be set, ten years makes the most sense as “this makes it consistent not only with other copyright offences, but also with the recently introduced legislation in relation to registered designs”.

However, it adds, “safeguards may be needed to ensure that ordinary members of the public and those whose copying is not motivated by a criminal intent are not inadvertently caught by any amended provision”. The study also suggests that the term “goods” may have to be altered in any new law covering online infringement.

Meanwhile the European Commission is due to propose a new copyright law that could supersede the old UK law in any case. ®