‘We urge consideration to be given to Sentencing Guidelines’ says FAST | FAST

‘We urge consideration to be given to Sentencing Guidelines’ says FAST

19th April, 2016

This core point will help address the issue of parity between off and online copyright infringement

A review of Sentencing Guidelines should be considered by the Government as an integral part of its consideration of the sanctions against IP criminals in relation to online or offline criminal copyright offences.

This call was made today by the Federation Against Software Theft (FAST) in response to the recent IPO consultation into 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 offline copyright offences is a maximum of ten years.

Julian Heathcote Hobbins, General Counsel, FAST, commented: “We urge the Government to consider Sentencing Guidelines as part of a holistic review. Despite a maximum ten-year custodial sentence for physical copyright offences, to our knowledge a custodial sentence of not even approaching that tariff has never been ordered. Looking at Sentencing Guidelines may help to address this issue in both the physical and online environments – assuming parity is granted.”

In its formal response, FAST had argued that the maximum custodial penalty for online and offline copyright offences should be harmonised - to a limit 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.

“We must 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,” he continued.

“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 sees the risk as de minimis,” Heathcote Hobbins continued.

Joanna Potbury of DMH Stallard LLP, a recognised leading firm for IP in the South East, added: “Whether deliberate copyright infringement occurs online or offline, it remains a criminal offence. Sentencing options available to the criminal courts should be broad enough to allow the most serious online copyright infringement offences to be matched with equally serious sanctions. Damage done by online infringement (including support to serious and organised crime) can be as severe as that done by physical infringement."

FAST also called for clarity in Section 107 (1) of the Copyright, Designs and Patents Act of 1988 as to what is meant by an ‘article’.

“This may sound like an obscure legal nuance but it is not. Given that software is a digital arrangement of binary information in electronic form, it is the view of FAST that a software file may not be properly considered ‘an article’ within the meaning of the Act. It is of course true that its carrier – say a CD or laptop – will be ‘an article’ as defined by the 1988 Act, but in terms of upload or download, what is delivered online, in the course of its transmission, well they are purely electrical impulses. It really is time to clarify this and amend the Act,” added Julian.