Unlike the music, film and computer games industries, the computer software sector has been comparatively slow to embrace the criminal provisions of the UK copyright legislation. There are many reasons for this but perhaps the most prevalent is an unfamiliarity with the law and practice in this area. This article is a guide to the what, when, how, and how much, of bringing Criminal Proceedings when your intellectual property is stolen. 

What is the law?

Sections 107 and 110 of the Copyright Designs and Patents Act 1988 (CDPA) create criminal offences in relation to the making, distribution, importation, sale, hire of infringing and illicit copies of all copyright works. In recent years criminal liability has been extended to anyone who communicates infringing works to the public, thus making internet pirates criminally liable for the first time. The maximum term of imprisonment for all of these offences has been increased to ten years. In the music and film industries custodial sentences of 2 to 3 years are now relatively common much to the shock in court of the infringers. Defendants can also be fined and the victim (the owner of the copyright) awarded a sum in compensation which often equates to the damages they would have recovered in the civil courts. Trading Standards departments have also now been given extra powers to enforce copyright laws and to prosecute offenders.

Criminal Actions as deterrent

It is therefore abundantly clear that both Parliament and the Courts are anxious to send a general message of deterrence that copyright infringement is theft and will be treated as such. The entertainment based industries have been benefiting from this new regime for many years and their trade associations and collecting societies have dedicated anti-piracy units to investigate these infringements. Their experience is that criminal action has deterred existing infringers far more than civil proceedings ever will.

When should I use a Criminal Prosecution?

Criminal prosecutions are not suitable however for all copyright infringement actions; in order to convict an offender in the criminal courts it is necessary to prove the offence beyond all reasonable doubt whereas in the civil courts it is on the balance of probabilities. This means that prosecutions are unsuitable for genuine commercial disputes as to for example the ownership of copyright, but by the same token completely appropriate for cases of clear infringement where copyright ownership is not at issue (and can be proven) and where the evidence of infringement is strong. They are not confined to out and out piracy and prosecutions brought following a complaint by one established company against another are common.

Criminal prosecutions are also very effective in targeting individuals, who in the civil courts might be able to shelter behind defunct companies. Directors, officers and managers can all be guilty to the same extent as a company provided they can be shown to have consented or connived in the criminal behaviour. And their criminal record follows them around from company to company so they cannot set up and close down companies at will infringing copyright along the way without seriously compromising their liberty.

How do I start an action and what happens next?

So how do you start a criminal action? Well anyone can make a complaint to the Police or Trading Standards that a criminal offence has been or is still being committed in their area. But whilst both are duty bound to investigate there is no guarantee that they will actually prosecute the offender. They may be prepared to execute a search warrant on business or home premises and seize infringing material and this may prove effective in disrupting the business of the pirate as well as obtaining further evidence of the criminal behaviour.

If they are not prepared to prosecute however then the copyright owner should consider bringing a private prosecution in the local magistrates court. This is a relatively simple process and unlike the civil courts, the law does moves very quickly. Within one month of issuing the summons against a Defendant for breach of copyright, that person , or if it is a company its directors, have to appear in person before a magistrates court to plead guilty or not guilty to substantive criminal offences with the substantial risk of a custodial sentence being passed. This tends to concentrate the mind and guilty pleas are pretty common. If the Defendant pleads not guilty or the crimes are particularly serious necessitating lengthy imprisonment, the case will be referred to the Crown Court for a jury trial or for sentencing. It is not unusual for a trial to take place within two months of the date of issue at the magistrates court and within five to six months at Crown Court.

Under the general criminal law any person or company has the right prosecute these offences not just the Crown Prosecution Service. The Prosecution of Offences Act 1985 enables anyone to stand in the name of the Queen and prosecute what is deemed to be a crime against society; the proceedings will actually be cited as R v [name of pirate]. The prosecutor need not even be the copyright owner and indeed an enforcement body (even without any special legal standing) may be the most appropriate prosecutor.

And you pay nothing at all!

And here’s the best bit; because this action is in effect brought on behalf of the State the action will not cost the private prosecutor anything at all! All legal costs and other costs, such as investigator’s fees, can be recovered from Central Funds at the end of the case irrespective of whether or not a conviction results subject only to matters of abuse or misconduct.

Criminal prosecutions are massively underused in the computer and new technology sectors.