Copyright
Criminal Liability
Jane Lambert
Sep
2002,
Last updated 4 March 2006
Categories of
Offences
S.107 of the
Copyright Designs and Patents Act
1988 ("CDPA") established the following categories of
offences:
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making or dealing in infringing copies of copyright works; |
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making or possessing an article specifically designed or adapted for making copies of copyright works; and |
|
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causing a work to be performed, played or shown in public. |
The section has
recently been amended by reg 26 of The Copyright and Related Rights
Regulations 2003 to cover communicating a work to the public either in
the course of a business, or otherwise to such an extent as to affect
prejudicially the copyright owner knowing or having reason to believe
that copyright in the work will be infringed. Directors, managers and
other officers of companies or other corporations that commit any of the
above mentioned offences with their consent or connivance are also
liable under that section by virtue of s.110 CDPA. The Copyright, etc.
and Trade Marks (Offences and Enforcement) Act 2002, has recently
increased the penalties for offences under the above section.
Making or Dealing in Infringing Articles
It is an offence under s.107 (1) of the CDPA to
(a) make for sale or hire,
(b) import into the United Kingdom otherwise than for private and
domestic use,
(c) possess in the course of a business with a view to committing any
act infringing copyright,
(d) in the course of a business
(i) sell or lets for hire,
(ii) offer or expose for sale or hire,
(iii) exhibit in public, or
(iv) distribute, or
(e) distribute otherwise than in the course of a business to such an
extent as to affect prejudicially the owner of the copyright,
an article which is, and which is known to be or where there is reason
to believe it to be, an infringing copy of a copyright work. Anyone
convicted of such making, importing or distribution may be fined or
sentenced to up to 2 years in prison upon conviction on indictment or 6
months imprisonment and a fine up to the statutory minimum on summary
conviction, or both (s. 107 (4) CDPA). The maximum penalty for any other
offence under s.107 (1) is 6 months imprisonment or a fine up to level 5
on the standard scale on summary conviction, or both (s. 107 (5)).
Making or
Possessing Specially designed or adapted Articles for Making Infringing
Copies
It is an offence under s.107 (2) to make an article specifically
designed or adapted for making copies of a particular copyright work, or
possess such an article, knowing or having reason to believe that it is
to be used to make infringing copies for sale or hire or for use in the
course of a business. The maximum penalty for an offence under this
sub-section is 6 months imprisonment or a fine up to level 5 on the
standard scale on summary conviction, or both (s.107 (5)).
Communicating the
Work to the Public
The new offence of communicating a copyright work to the public is
provided by a new s.107 (2A). The penalty for that offence is a
imprisonment not exceeding 3 months, a fine up to the statutory maximum
or both on summary conviction, or 2 years imprisonment, a fine or both
under a new s.107 (4A).
Causing a Work
to be performed, played or shown in public
It is an offence under s.107 (3) to cause a artistic, dramatic, literary
or musical work to be performed, or a film or sound recording to be
played or shown, otherwise than by reception of a broadcast, in the
knowledge or with reason to believe that copyright would be infringed
(s.107 (3)). Again, the maximum penalty for an offence under this
sub-section is 6 months imprisonment or a fine up to level 5 on the
standard scale on summary conviction, or both (s.107 (5)).
Delivery up in
Criminal Proceedings
In addition to the above sentencing powers, both the Crown and
magistrates' courts have power under s.108 (1) CDPA to order a defendant
to deliver up to the copyright owner (or such other person as the court
may direct) any infringing copies of a copyright work or any articles
specifically designed or adapted for making infringing copies if
satisfied that the defendant had such infringing copies or articles in
his or her possession, custody or control and knew that the articles had
been or would be used to make infringing copies at the time of his or
her arrest or charge. For the purpose of this provision a person is
charged when he is orally charged or served with a summons or
indictment. The court can exercise that power regardless of whether or
not the defendant is convicted (s.108 (3)), Such an order may not be
made more than 6 years after the date upon which the infringing copy or
article was made. Nor may it be made if an order for forfeiture of or
destruction of infringing copies appears unlikely.
Enforcement
S.165 (1) of the Criminal Justice and Public Order Act 1994 inserted a
new s.107A into the CDPA requiring every local weights and measures
authority to enforce s.107 CDPA within its area.
Powers
S.107A (2) confers on local weights and measures authorities the same
powers to make test purchases, enter premises and inspect and seize
goods and documents as they enjoy under the Trade Descriptions Act 1968.
Justices of the Peace may grant warrants to police offers to enter and
search premises, vehicles, ships, aircraft and other moveable structures
upon information given on oath that an offence under s.107 (1) (a), (b),
(d) (iv) or (e) of the CDPA has been, or is about to be committed there,
or that there is evidence relating to such an offence is to be found
there pursuant to s.109 CDPA.
