We recently reported on the recent consultation on increasing the maximum penalty for online copyright offences. The Government has now released its full consultation response and has confirmed that it will increase the maximum custodial sentence from 2 years to 10 years. The Government believes that online offences should be treated no less seriously than their physical counterparts and is concerned that the current disparity has resulted in other laws (e.g. conspiracy to defraud) being used to fill the gap.
The responses to the consultation had identified three concerns with the proposed changes:
- Strict Liability: some respondents had noted that there is no requirement to prove that a copyright infringer had an intent to cause harm. The Government notes that an offender does need to know or have reason to believe that there is a copyright infringement, which provides a sufficient mental element. Whilst there are also safeguards in place to prevent low level offenders from being prosecuted (e.g. staged response systems), the Government does accept that there are some concerns.
- "Prejudicially affect": some respondents felt that this term was too vague and could set an unacceptably low threshold for committing the offence, which could even include a single infringing file. The government agrees that this phrase is ambiguous but does not think that there is a high risk of minor infringers being prosecuted.
- Maximum custodial sentence: there was some criticism that the proposed 10 year sentence was the same or higher than other offences such as rape, rioting and child cruelty. The Government, however, believes that a 10 year maximum sentence allows the courts to apply an appropriate sentence to reflect the scale of the offending.
The Government will now introduce "at the earliest available opportunity" redrafted offences, to increase the maximum sentence and to address the concerns mentioned above. Rights-holders should therefore be very pleased with the clear message that online copyright offences are taken seriously and will be prosecuted in the same way as their physical counterparts.