Brassell and Goodyer (2015)

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Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Brassell and Goodyer (2015)
Title: Penalty Fair? Study of criminal sanctions for copyright infringement available under the CDPA 1988
Author(s): Brassell, M., Goodyer, I.
Year: 2015
Citation: Brassell, M. & Goodyer, I. (2015) Penalty Fair? Study of criminal sanctions for copyright infringement available under the CDPA 1988. IPO, 2015
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: Two files were supplied by the Ministry of Justice for this study. The first provided a listing of every case recorded on its systems that involved an offence under CDPA 1988 for the years 2006-2013, broken down by the main section(s) of the Act involved where possible70. The second provided a separate look-up of all other recorded offences relating to the unique case identifiers associated with the CDPA 1988 records.

The first set of Ministry of Justice data identified 2,808 people convicted of a copyright offence over the period. Of these 2,808 people, 2,100 were convicted of Summary offences and 708 were indictable offences.

Data relating to prosecutions was also provided by the Crown Prosecution Service, Trading Standards and the IP Crime Report.

A short survey was devised to understand the experiences of individual copyright owners in dealing with online infringement. While the respondent numbers were modest (n=40), they came from a number of different constituencies within the creative industries (illustrators, artists, graphic designers, musicians, photographers, games companies, software engineers and others who place their digital materials online).

Data Type: Primary and Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: Yes
Time Period(s) of Collection:
  • 2006-2013
  • 2014
Funder(s):
  • IPO

Abstract

This study was commissioned by the UK Intellectual Property Office (IPO) to provide an evidence based view on whether the criminal sanctions for copyright infringement available under the Copyright, Designs and Patents Act 1988 (CDPA 1988) are currently proportionate and correct, or whether they should be amended.

The particular point of focus for the study is the difference in the sanctions that apply to online criminal activity – often referred to as ‘piracy’ - compared with those relating to physical goods. Its scope, has been to gather quantitative data from 2006-13 and qualitative views and evidence from stakeholders, and to set out the arguments for and against any change in the law.

Main Results of the Study

  • Physical infringement offences have important differences from online ones
  • Online crimes are harder to understand
  • Not all prosecutors appear confident in bringing charges
  • The law is not as clear as it could be
  • Private prosecutions have used alternative legislation
  • Juries appear reluctant to return guilty verdicts on fraud charges
  • Even where an alternative approach works, CDPA 1988 does not benefit

Policy Implications as Stated By Author

This study has been asked to consider the available evidence in the light of four main policy options: namely, i) making no change, ii) increasing the penalties for online infringement to match those for physical offences, iii) reducing the physical offences to those currently applied to online offences, or iv) moving one or both sets of sanctions to a new, intermediate level.

i. The online criminal provisions of CDPA 1988 are hardly being used, if at all. There has been a lack of clarity over how they can be applied, and even if this is addressed, they will not provide access to appropriate and proportionate sentences for serious infringement cases. If no change is made, this problem will continue.

ii. There is a case for increasing sanctions relating to online offences, especially if the civil case law is believed to have developed to a point where prosecutions can now be brought successfully against criminal activity. However, safeguards may be needed to ensure that ordinary members of the public and those whose copying is not motivated by a criminal intent are not inadvertently caught by any amended provision. Also, there must be a proportionate approach that permits legitimate experimentation.

iii. Custodial sentences in excess of two years have been used for physical copying offences. While no evidence was found of sanctions exceeding five years, the available data does not provide a basis for concluding that the level of physical penalties is inappropriate – it is rare to have the maximum sentence applied to any such crime, but important to have the means to establish a scale of offending.

iv. There is logic to placing serious online copyright offences into a more serious category, which soundings taken for this study equate with a maximum sentence of at least five years. The precedents within the IP landscape are either to leave offences outside the criminal justice system altogether (as in the case of patents) or to set a maximum offence on conviction at ten years. Fundamentally, either online copyright offences are capable of causing serious harm, or they are not.



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
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Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
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Datasets

Sample size: 2808
Level of aggregation: Individual Copyright Offences
Period of material under study: 2006-2013


Sample size: 40
Level of aggregation: Individual
Period of material under study: 2014