Should the Pirates get 10 Years, or just walk the Plank?

Some considerable time after the Gowers Review (pdf) recommended (recommendation 36) that the maximum term of imprisonment for online criminal infringement should be increased, the IPO has launched a consultation [pdf) on whether the term should be raised from the current 2 years to a maximum of 10 years. In an effort to stick to its policy of evidence-based decision making, the consultation document exhorts would-be respondents to say rather more than just Yes or No when replying. However the same document is very thin on justification, its argument being mainly the fact that the penalty for infringing copyright in physical objects or designs is 10 years and so it would be neater if the penalty for online piracy was the same.

Would-be respondents therefore need to go to the 98 page Report on the subject commissioned, and published in March 2015, by the IPO, for some more detail about the pros and cons of the proposal.

While there is no denying that online piracy remains a significant problem, one can't help feeling that this has more than a hint of political grand-standing. The former MP and IP advisor to the Prime Minister, Mike Weatherley put it like this:

"There is currently a disparity in sentencing between online and offline crime that needs to be harmonised. This sends out all the wrong messages. Until this is changed, online crime will be seen as less significant than traditional theft". (My added emphasis).

While deterrence is all about sending messages, one has to be clear about whether the target audience will in fact be impressed by such demonstrations of muscle flexing.

Given that Mr Weatherley's remarks were contained in a report entitled Follow the Money, it could be argued that the current judicial initiative of using section 97A to take down or block sites containing infringing material, is cheaper, quicker and more effective than relying on the rather more ponderous and over-stretched criminal justice system, especially as in many cases it will need to rely on extraditing individuals from other jurisdictions. One has only to look at the Kim Dotcom saga to see how long criminal cases of that sort can take to get to court. In contrast, Mr Justice Arnold can knock out an injunction in a morning's work. And of course criminal cases require a higher standard of proof compared to civil ones.

The Report provides some interesting analysis of the current situation with regard to past criminal cases in the UK:

"The available court data from 2006-13 makes it clear that over the last few years, all prosecutions and convictions under CDPA 1988 have been going down. Online offences constitute a small, and apparently decreasing, fraction of copyright prosecution activity as a whole. Separate evidence provided by the Crown Prosecution Service and Trading Standards showed that neither have brought any cases at all under the online provisions of CDPA 1988." (second paragraph, page 5).

While I don't have a problem with tidying up the law, and goodness knows the Copyright, Designs and Patents Act is in dire need of tidying up, just tinkering at the margins for political rather than good evidence-based reasons is not really constructive. Let us hope that the IPO make a better job of conducting this consultation that they did over the recently-quashed private copying for personal use secondary legislation. The consultation closes on 17 August 2015.

Japan introduces new download sanctions

Illegal downloaders in Japan now face prison terms of up to two years and fines of nearly 2 million yen (U.S. $25,679 or £15,900) from today. The Japanese government says that the move is aimed to protect the film industry and stop falling music sales in the World's second largest music market, where record industry officials estimate only one in 10 downloads are legally purchased. The Recording Industry Association of Japan says the legal download music market shrank 16% in 2011, the second consecutive year of decline. The slide comes despite global sales of digital music increasing 8% last year to $5.2 billion, according to the International Federation of the Phonographic Industry (IFPI) and Japanese content owners hope the new regime will mirror the success of the ‘three strikes’ legislation introduced in South Korea which the IFPI says warns off 70% of infringers after the first notification, and France where according to the IFPI peer-2-peer piracy levels declined by 26% after the introduction of the law Hadopi. Illegally uploading copyright material in Japan carries a maximum 10 year prison sentence and 10 million yen fine. The Japanese legal profession had some concerns about the new penalties and had asked the government to leave the matter as a civil law rather than a criminal law matter, pointing out that downloads by individual's was 'insignificant' in terms of damage to rights owners. 

 http://edition.cnn.com/2012/10/01/business/japan-music-piracy/index.html

Russia Prosecuting Online Infringement. For the WTO?

The Criminal Code of the Russian Federation provides for those convicted of copyright infringement to forfeit up to 18 months of their wages, among other possible punishments including jail time or work-relief.  (Art. 146.) 

Rumor has it that though Russia has these laws on her books, their enforcement has been less ideal.  According to an AFP story on Yahoo! News, Russia is working to change that.  The proposed motive: entry into the WTO.

The Recent Enforcement

Basic story-line, young man uploads music tracks to a social networking site without permission from the copyright owner.  Other users download the songs.  In this case, the Russian music tracks uploaded by the young man were downloaded over 200,000 times by other users.  The young man was caught and prosecution charges filed.

High-profile raids to confiscate infringing goods have also increased in the move to step-up enforcement.

The WTO Relationship

According to the AFP story, Russia is increasing its copyright enforcement in order to finally join the WTO, a process it began in 1993.  The article states, “Russia's inability to implement any meaningful form of copyright protection has been one of the main issues raised by the United States during the latest rounds of two sides' World Trade Organization negotiations.”

Some other research sheds some doubt on this reasoning.  Russian WTO negotiations with IP-promoting Western governments have been going well recently.  The EU backed Russia for WTO admittance late last year and negotiations with the US have been progressing with the support of President Obama.  (See here, here and here.)  And while there is some discussion of intellectual property enforcement being a problem, the major barriers remaining are more likely tariffs.

This is not to say that increased enforcement will not help Russia in its bid for the WTO, but merely to suggest that it is not quite as an important factor as the AFP story suggests.  At the very least, such enforcement should help get Russia removed from the Priority Watchlist in the infamous Special 301 Report (pdf).

Armenia proposes to get tough with infringers

If you're thinking of a safe haven from which to practise the non-so-subtle arts of copyright infringement and have been checking the prices of luxury apartments in Armenia, think again. A news item from Eastern Europe and Caucasus-focused IP practice Petosevic, "Bill Tightening Penalties for Copyright Violation Introduced in Armenian Parliament", warns that things are only likely to get tougher for infringers there.

Right: Armenian prisons to welcome copyright infringers?

A bill aimed at increasing the penalties for copyright violation was introduced in the Armenian Parliament in late April. Its objective is to protect the rights of authors, to which end it calls for mandatory marking of audio and video information carriers with hologram labels.

The bill provides for a penalty to the value of US$ 2,500 (EUR 2,030) for a first offence [this is more than twice Armenia's gross per capita annual consumption], with a prison sentence of up to 12 months for second and subsequent offenders. The most recent BSA survey showed Armenia among the top nations for software piracy, where 93% of computer programs are reported to be illegal.

For prison conditions in Armenia click here

Guns N Roses leaker gets probation and gets to make an advert

Kevin Cogill, the blogger who was arrested at gunpoint and admitted to leaking a large part of the latest (and long awaited) Guns N' Roses album "Chinese Democracy", has been sentenced to a year of probation and two months of home confinement. Cogill will also have to record a 'public service announcement' for the Recording Industry Association of America, explaining the evils of music piracy and how illegal downloading and fileswapping hurts band. Cogill will also have to allow authorities to search or seize his computers.

Cogill had leaked and posted nine tracks from the fourteen track album online in June 2008 last year - onto his own site (http://www.antiquiet.com/). In court he apologised saying "I never intended to hurt the artist" adding "I intended to promote the artist because I'm a fan". The court has been pressed by the federal prosecutor for a short prison term as a deterrent to others although prosecutors did acknowledge that this might turn the defendant into something of a martyr. In his defence Cogill's attorney argued that his client had acknowledged his wrongdoing and had lost his job as a result of the case. Cogill will not have to pay any fines or restitution, although authorities at one point calculated the losses from his actions at more than $371,000. The album, 17 years in the making, reached number 3 in the US charts when it was released in November 2008.

http://www.google.com/hostednews/ap/article/ALeqM5h0CNEfp4hh-4YyETFh4AOn6_ohEAD99EG9700

http://www.wired.com/threatlevel/2009/07/guns-n-roses-uploader-gets-home-sentence-agrees-to-produce-riaa-anti-piracy-message/

Proposals from the IPO -- but will the Minister tweet?

From the Intellectual Property Office in the United Kingdom comes this press release concerning proposed penalties for online infringement.

"Tougher penalties for online Copyright Infringement proposed as part of Digital Britain package

Following the publication of the Digital Britain Report, the Intellectual Property Office has outlined proposals to improve copyright licensing and increase financial penalties for online infringers.

They include:

• Legislative changes to license orphan works. Legislation will effectively deal with this issue in order to remove the infringement risk that currently prevents collecting societies licensing orphan works (arising as they do not have a mandate from the rights holder). [Curious way to begin the substantive bit of a press release with "tougher penalties" in its title] This will benefit cultural organisations by allowing them access to currently unusable material [which some have been accessing anyway because the risk is small or because they didn't know there was one]. It will also enable public access to a great number of historical works that are currently locked up [this seems to confuse access to use with access to view -- these are quite different issues].

• New powers for government to authorise collecting societies to set up extended licensing schemes. This will allow certain collecting societies to act for a group of rights holders even if they are not all members of the society, unless a specific rights holder has opted out of the scheme [will this result in the authorisation of just one society per right?].

• Underpinning the operation of collecting societies. As collecting societies reach out to new groups of customers, we need to underpin their operations with a statutory backed framework [underpinning: does that mean 'supporting' or 'pinning down'?].

• Consultation on improving operations of collecting societies. Government would not make recommendations to utilise the above powers without formal public consultation with stakeholders and other interested parties [the key word is "improving": it can mean different things when viewed from the perspectives of rights owners, users of works and consumers].

• Matched penalties for online and physical IP infringement. This proposal will introduce a statutory maximum penalty of £50,000 for all IP offences [the pedant asks: "for all IP offences" or "for each IP offence"?].

Commenting on new proposals, David Lammy, Minister of State for Intellectual Property said: "We must have the tools in place to tackle serious and organised IP crime. The proposed £50,000 maximum penalty for online and physical infringement sends a clear message to IP criminals. In this online age, IP infringement warrants a serious response. It needs to be stamped out- regardless of whether the offence is online or offline."

He added "In order to modernise and streamline the existing copyright system, I’m proposing a number of changes to the way collecting societies can operate.
I want to see greater development to ensure that our orphan works such as those great cultural works amassed in the BBC and the British Library are accessible to those who wish to benefit from them.

We should underpin the operation of collecting societies so that customers receive similar services and safeguards they would expect when dealing with a quality utility company."

I've always wondered what the purpose of adding quotes like this is, when they don't add any substance to the press release. Still, the Minister has kindly made himself available this Thursday evening at a reception. I hope to ask him for clarification of these proposals, as well as the really pressing question: why, when he has a presence on Twitter, does he never tweet on intellectual property issues -- even when prompted by me to do so?