The UK Government (via it’s misnamed “Intellectual Property Office”) just held a consultation on copyright infringement. In comparison to previous ones, this one was simple, and had only one question.
Should the maximum custodial sentence available for online and offline copyright infringement of equal seriousness be harmonised at 10 years?
Please justify your answer and support with evidence where possible.
That last line is quite amusing, as you might recall, last time I responded to an IPO consultation, they took exception to my response, labeling factual claims and the evidence that backed it up as “potentially libelous“, even though some of the material was quite literally immune from libel claims (accurate descriptions of court hearings and judicial rulings have Judicial immunity from Libel), which they later admitted to be complete nonsense. Amusingly, many of the big companies responding also contained [potentially] libelous statements, and unsourced assertions, and yet were not touched at all.
Nevertheless, I felt I should give them another go. Despite the PPUK already putting forward a response partly in my name, I felt the need to add my own personal touch.
The answer is a pretty obvious ‘NO’, but I decided to focus on the aspect that I feel will be most impacted by this increase in punishment – specifically the potential increase for pushes to settle for claims of copyright infringement with poor or no evidence of wrongdoing. It was already common in the UK many years ago with ACS:Law and Davenport Lyons, when far smaller penalties were available. The consultation document even highlights this
The case for harmonising the maximum custodial sentence for physical and online copyright infringement goes back many years. The 2005 Gowers Review recommended that the penalty for online copyright infringement should be increased from two to ten years because, as it stated “The intention and impact of physical and online infringement are the same”. The Government at the time consulted, but did not make the change due to its policy to only imprison serious and/or dangerous offenders. It did, however, increase the statutory maxima fine from £5,000 to £50,000. This has subsequently been made unlimited.
The less said about that review the better, as the few good aspects (such as the non-extension of terms) were ignored, and the bad bits seized with gusto – about par with an organisation that is often led by those dazzled with fame or who are well connected, and will drive legislation to please them.
Regardless, the big problem is that people don’t take infringement seriously, because the law is seriously out of what anyone would consider fair, just or proportional. So boosting penalties to make it even less fair, just or proportionate, based entirely on unverified (and often contradictory) claims of an industry (who, like all industries, is seeking to maximise their profits) is going to encourage, not discourage infringement. People are punished, or threatened with punishment, over an unsubstantiated accusation, and far too often these claims of infringement are completely baseless. Yet they continue to happen, why? It’s because there are no consequences for filing a false copyright claim.
That was the basis of my response. It doesn’t matter how much you ramp up the penalties, if people don’t believe that it’s just, they won’t abide by it, even when the penalty is death (as was the case in pre-revolutionary France for copyright infringement (breaking the Royal monopoly on fabric patterns). It’s not as full as I’d like (only 5,400 words and 16 pages with 43 sources cited), but that’s because I ran out of time – I quite literally submitted it at 11:44pm on August 17th, one minute before the deadline. Some places are extremely strict about ‘deadlines’ and have no ‘wiggle room’ at all.
So now we see what will happen, and what they’ll do to butcher my responses this time.