‘There must be parity between online and offline copyright infringements,’ says FAST
Enforcement body calls for harmonisation of physical and digital IP offences and changes to sentencing guidelines in IPO consultation
The Federation Against Software Theft (FAST) has called for equal treatment in the eyes of the law for online and offline copyright offences in its formal response to the Intellectual Property Office’s consultation on the matter. However, the industry body warned that any such change in the law would be academic unless Sentencing Guidelines are considered to provide sufficient deterrent to the crimes.
The consultation is to changes to the penalties for offences under sections 107(2A) and 198(1A) of the Copyright, Designs and Patents Act 1988. Currently online copyright infringement offences are punishable by a maximum of two years imprisonment. By comparison, the maximum custodial sentence for infringement in respect of physical goods is ten years.
In its formal response, FAST argues that the maximum custodial penalty for online and offline copyright offences should be harmonised at to a maximum of ten years for commercial copyright crimes. According to FAST, this change is justified because the intention and impact of both infringements are the same and necessary because of the pre-eminence and importance of digital delivery model today.
Julian Heathcote Hobbins, General Counsel, FAST, commented: “We support effective and dissuasive sanctions against copyright crime. It is entirely appropriate that the maximum possible custodial sentence for serious and commercial online copyright infringements to match those for offline. There is an imbalance in the law as currently drafted and the distinction between online - and offline - offences implies that digital copyright material is somehow less valuable than physical copies. In light of the value and importance of the online environment for software and content, it’s critical that this is addressed.
“To be clear, this is not about targeting those who are vulnerable or infringe unwittingly. Rather, the individuals that commit online piracy on an industrial scale, earning significant amounts of money on the back of the Intellectual Property of others in the process. This kind of activity can be highly lucrative and involves considerably less risk than other more traditional forms of crime. But the law as currently drafted means that if caught, a perpetrator would be liable for a maximum custodial sentence of two years – but often considerably less,” Heathcote Hobbins continued.
The industry body went on to say that this change must be matched with a change in judicial approach including on Sentencing Guidelines as the sentencing regime for copyright crime can be neither effective nor dissuasive.
“Despite a maximum ten year custodial sentence for physical copyright offences, to our knowledge, a custodial sentence even close to approaching that tariff has never ever been ordered. Compared to the sentences often handed down other lifestyle offences, it’s easy to see why professional criminals venture into IP crime. Addressing guidance to judges should help to address this issue in both physical and online environments assuming parity is granted,” Heathcote Hobbins concluded.