In July 2015, the UK Government consulted on proposed changes to the maximum term for online copyright infringement, increasing it from two to ten years to make consistent with the penalty for physical copyright infringements. This document summarises the responses received. The consultation asked one question: Should the maximum custodial sentence available for online and offline copyright infringement of equal seriousness be harmonised at 10 years?
Supportive comments: 1) it is important that creativity is respected and rewarded, and those who deliberately infringe or facilitate infringement should face criminal sanctions. Copyright infringement online is no less serious than that of physical, and therefore shouldn’t be treated any differently; 2) the low sentence means that alternative, less specific legislation must be used for prosecutions where a sentence of more than two years is sought. This leads to cases where the requirements for proof prevent a successful prosecution. For example, common law conspiracy to defraud; 3) there are many services in the UK offering content for free or at low cost. Making available infringing content is in clear defiance of creators’ rights to receive remuneration for their work; 4) change would act as a powerful deterrent to those engaging in IP crime; 5) a low maximum sentence restricts the investigative options for enforcement agencies and makes it difficult to convince courts that it is a serious crime; 6) heavy sentences are not being handed to minor infringers or innocent people; a maximum of 10 years imprisonment is already available using other less specific legislation.
Opposing comments: 1) 10 years is too high; copyright infringement is not a serious crime; 2) With a higher sentence there is more incentive for private prosecutions, which in turn will increase the numbers being imprisoned; 3) there is a difference between infringement committed online and physically and they should not be treated the same. Physical requires a sophisticated set up, whereas online can be done quickly, without specialist equipment and sometimes unwittingly; 4) there is no requirement to prove intent to cause harm, meaning that the existing offence has elements of strict liability; 5) the term ‘affect prejudicially’ is too vague and could mean someone facing a criminal charge where only a minimal amount of content has been infringed. This requires some threshold to ensure only commercial scale infringers are punished.