In July 2015 the UK Government began a consultation on increasing the maximum custodial sentence for criminal online copyright infringement under the Copyright, Designs and Patents Act 1988 (the “Act”) from two years to ten – see our previous blog for more information. In its recent Response to this consultation, the Government addressed respondents’ concerns surrounding strict liability, the Act’s existing “affect prejudicially” wording, and the proposed level of custodial sentence.

The Government reported respondents were concerned that the lack of any requirement to prove an intent to cause harm suggested a degree of strict liability. The current offence simply requires a person to know or have reason to believe that they are infringing copyright (s107(2A)) of the Act). The Government pointed out that existing controls (including the criminal standard of proof and a system of staged responses to infringement) limit any such risk; even so the policy intention around changes to the Act is that they should not apply to small-scale offending where the harm to copyright owners is minimal.

Sections 107(2A) and 198(1A) of the Act include the wording “affect prejudicially”. According to the Government’s Response, many respondents considered this too vague a threshold, risking the imposition of criminal liability over, hypothetically, the transfer of single files. Whilst the Government was not aware of any instances where very minor infringements of copyright had resulted in such prosecution, it agreed that the undefined term had the potential for ambiguity which would be addressed in the proposed legislation.

The Response noted that further concerns were raised over the proposed increase of the maximum custodial sentence from two years to ten, with respondents highlighting to the Government that this brought the maximum in line with that of offences such as rioting and child cruelty. The Government argued, however, that such a level is necessary to act as a deterrent and to allow courts to react appropriately to the scale of some offending. A recent example cited by the Response was that of five defendants who released 2,500 new films onto the internet and had to be charged under the Fraud Act 2006 to allow for greater flexibility in sentencing. The proposed legislation will therefore aim to implement the ten year maximum as planned.

The Government will seek to introduce the proposed amendments to the Act at the earliest opportunity.