The passing of the Digital Economy Act earlier this month means, suppliers and users of illegal streams offered through such services as Kodi add ons, could be sentenced to a maximum sentence of 10 years imprisonment, if convicted of illegally streaming content protected by copyright.

This significant change in the law has been introduced as a result of the exponential increase in the use of set top boxes to stream copyright protected material into homes and business premises (often licenced premises), thus avoiding payment for legitimate satellite or cable services. It should be noted that the product offered by Kodi, is nothing more than a media player, similar to the media player offered by Windows. However, as it is open-source software, it can be adapted for illegitimate use with various third party add-ons that give the devices’ owners unlawful access to a whole range of content which they should be paying for – or that they should not be able to watch at all, like films that are currently only available in the cinema.

The general consensus is that prosecuting authorities will use those powers to take action against the suppliers of such boxes in the first instance, but there is a feeling within the industry that end users (i.e. individuals using these boxes to watch content at home) may feel the wrath of these new powers too.

The ability to take criminal action against those found to have infringed copyright is nothing new –the Copyright, Designs and Patents Act 1988 has previously permitted rights holders the ability to pursue criminal action. As a result of these powers, suppliers of infringing systems have been imprisoned and fined. That said, the effectiveness of taking such criminal actions, in Scotland at least, it not without its problems.

Although the 1988 Act is applicable throughout the UK, the criminal provisions operated differently in Scotland, compared to England and Wales. South of the border, rights holders such as Sky have the ability to pursue private criminal prosecution, which means they can take infringers through the criminal court system. However, in Scotland, criminal action has to be taken by the Procurator Fiscal. As one might imagine, the PF’s office deals with the full range of criminal prosecutions in Scotland and clearly they have a priority list. Which begs, the questions, if it is not within right holders’ gift to take their own criminal action in Scotland, how can they ensure their copyright is protected?

There may be lessons we can learn from the commercial operations of rights-holders and broadcasters, who have long taken action against the owners and operators of licenced premises who show subscription only programming (e.g. football matches) without paying for the requisite commercial subscription agreement that permits them to do so.

George Lawson, Head of Commercial Operations at Sky, recently spoke at the inaugural Burness Paull IP & Technology Conference and provided an insight into how Sky Business takes action against infringing licensed premises in Scotland as well as how piracy issues have evolved over the last few years.

The only legitimate way for a licensed premises to show football matches on Sky is with a commercial subscription agreement. Any other means will infringe Sky’s copyright and will involve them taking either their own civil action or passing case details to the PF’s office and asking them to take criminal action.

In Scotland, interim interdicts (the Scottish equivalent of an injunction) can be sought against the owners and operators of licenced premises to prevent continued infringement of Sky’s copyright. An interim interdict can be sought much quicker than its English equivalent meaning that it can be very powerful and cost effective means of protecting Sky’s copyright.

Mr Lawson also spoke about how piracy and technology has evolved such that a few years ago Sky were dealing with the issue of customers of pubs, taking in their residential Sky viewing card into their local, allowing that pub to show Sky content without paying for it. In such an instance, Sky would cancel that residential viewing card meaning it can no longer be used to access Sky content and would likely also seek take court action for such infringement. Mr Lawson explained how the technology and piracy had evolved and now Sky are dealing with third party suppliers supplying streaming boxes to pubs which gives them (illegal) access to a whole range of channels, including Sky.

The issues faced by Sky are mirrored by a large number of rights holders, like the Premier League, throughout the UK and beyond. That is why such rights holders were so keen to see a change in the law that recognises the seriousness of the threat of online piracy. Given the rising number of users of streaming systems which use these kinds of add ons, it is clear that new measures were needed. The new provisions are a sign that the Government are beginning to realise the importance of tackling online piracy, and a recognition that the law requires to be adaptable to keep up with the evolving technology in this area.

This article was first published in The Scotsman