Guidelines – Sentencing for Copyright Infringement
The court was asked questions as to the level of sentence for offences of distribution of articles which infringe copyright. He had operated a number of websites which were responsible for the illegal distribution of licensed and copyrighted material. He did not himself have the material on his own websites; but he facilitated internet users by operating websites which permitted them to go elsewhere in order to find digital material via what are called ‘torrent’ websites which permitted such downloading.
Held: The sentence of 12 months had been appropriate. ‘we would suggest that the following (non-exhaustive) considerations are likely to be relevant in sentencing cases of this particular kind, involving the unlawful distribution of infringing copyright articles:
(1) First, illegal downloading and distribution is very often difficult to investigate and detect. It can give rise to serious problems and losses (none the less real for not being readily quantifiable) to the music and entertainment industry. Deterrent sentencing in such a context is appropriate.
(2) Second, the length of time (and including also any continuation after service of cease and desist notices) of the unlawful activity will always be highly relevant.
(3) Third, the profit accruing to the defendant as a result of the unlawful activity will always be relevant.
(4) Fourth, and whether or not a significant profit is made by the defendant, the loss accruing to the copyright owners so far as it can accurately be calculated will also be relevant: as will be the wider impact upon the music industry even if difficult to quantify in precise financial terms: because wider impact there always is.
(5) Fifth, even though this particular type of offending is not the subject of any Definitive Guideline there may be cases where it will be helpful to a judge to have regard to the Definitive Guidelines on fraud, bribery and money laundering offences. In some cases, such as the present, that will positively be required because one or more of the counts on the indictment, as here, will be a count which comes within the ambit of the guideline itself. But even where that is not the position there may be some cases where a judge, at least if only as a check, may wish to refer to the Definitive Guideline to get a feel, as it were, for the appropriate sentence. However, there will be other cases where the Definitive Guideline may be of marginal, and perhaps no, assistance at all. That will be a matter for the assessment of the judge in the individual case. Where the Definitive Guideline is required to be taken into account because one of the counts on the indictment is within the ambit of the guideline, that of itself will no doubt lend assistance in deciding what the appropriate overall sentence will be.
(6) Sixth, personal mitigation, assistance to the authorities and bases and pleas of guilt are to be taken into account in the usual way.
(7) Seventh, unless the unlawful activity of this kind is very amateur, minor or short-lived, or in the absence of particularly compelling mitigation or other exceptional circumstances, an immediate custodial sentence is likely to be appropriate in cases of illegal distribution of copyright infringing articles.’
David LJ, Spencer J, Munro QC HHJ
[2017] EWCA Crim 139
Bailii
Copyright, Designs and Patent Act 1988 107(1)(e)
England and Wales
Criminal Sentencing, Intellectual Property
Updated: 11 November 2021; Ref: scu.579616
