Deterrence sentencing for copyright infringement: Court of Appeal gives guidance

How long is a prison sentence...
How long is a piece of string?

The question of criminal sanctions for infringement has been on the agenda of copyright reform for some time. As readers have probably followed, the government has previously stated in its IP Crime Report that criminals who undermine the work of creators should face tough sentences [p.42]. After the recent consultation, the government proposed to make changes that include increasing the maximum sentence by upping the maximum custodial sentence to ten years in sections 107(4A) and 198(5A) of the Copyright Designs and Patents Act (CDPA) 1988.

In the meantime, an interesting case in the Court of Appeal gave the court an opportunity to emphasise the importance of deterrence sentencing in favour of the music industry. The court then set out some considerations to take into account when sentencing in relation to copyright infringement under s.107 of the CDPA 1988.

In this case - Regina v Wayne Evans [2017] EWCA Crim 139, 14 February 2017 - Wayne Evans appealed against a sentence in reference to section 107(1)(e) of the CDPA 1988 [Criminal liability for making or dealing with infringing articles]. Evans pleaded guilty to making available by operating a number of websites responsible for the illegal distribution of licensed and copyrighted material, one of which had 168,000 users and facilitated 523,000 downloads of UK Top 40 singles. However, Evans had no previous convictions and pleaded guilty.

The Crown Court at Liverpool found Mr Evans guilty of two offences of distributing an article infringing copyright contrary to section 107(1)(e) CDPA 1988, and also to a further offence of possessing an article for use in fraud contrary to section 6(1) of the Fraud Act 2006. He was sentenced to 12 months imprisonment on the first count, 6 months' imprisonment on the second count and 10 months' imprisonment on the third. All sentences were to run concurrently resulting in a sentence of 12 months' immediate imprisonment.

On appeal, it was argued that the sentence was excessive as it failed to sufficiently acknowledge that the appellant was not motivated by financial gain, the defendant had existing mental health issues and was previously of good character, and he was unlikely to re-offend based on the pre-sentence report [at 17]. However, dismissing the appeal, the court found that the original sentence of 12 months immediate imprisonment was appropriate in light of the loss to the owners of the relevant copyrights and related performers [at 19]. In his judgement Lord Justice Davis stated that the offender's conduct was sustained and persistent, even after receiving cease and desist notices, for a lengthy period of time; Evans also used sophisticated equipment for the purpose [at 19]. So, whilst Evans may not have been motivated by financial gain, there was still a loss to the copyright owners in both a quantified manner, and also in the a wider detrimental impact on the music industry and its profitability. Therefore a deterrence sentencing is justified in this context [at 19].

Two cases come to mind to this Kat. The first is R v Toska (Albert) [2010] EWCA Crim 2187, 2 September 2010 where in the Crown Court at Southwark, Toska pleaded guilty to possessing apparatus designed for making false identity documents with intent, contrary to section 25(3)(a) of the Identity Cards Act 2006 (count 2); possessing a false identity document with intent; and making articles for sale in breach of copyright, contrary to section 107(1)(a) of the CDPA 1988 (count 9). Toska was sentenced on count 9 to a consecutive term of six months' imprisonment, making a total of four-and-a-half years' imprisonment together with the additional charges. On appeal the court lowered the sentence for count 2 (making false ID documents) but the sentence for copyright infringement remained unaltered – six months.

Secondly, in R v Ross (William Keith) [2012] EWCA Crim 750, 21 February 2012 in the Crown Court at Newcastle Ross, pleaded guilty to one count of distributing/infringing copies of copyright works, contrary to section 107(1)(d)(iv) of the CDPA 1988. Although Ross was known to have a “criminal life-style”, his plea basis, which was accepted, stated that at first he had been misled into believing that the appropriate licences had been obtained, although later became aware that they had not. He was sentenced to 36 weeks' imprisonment suspended for 12 months, with a supervision requirement of 12 months. Ross appealed but the Court of Appeal upheld the decision.

These cases demonstrate some variety in the approach to sentencing. As such, it was pointed out in the Evans case that there are no Definitive Guidelines issued by the Sentencing Council in respect of offences contrary to section 107 of the CDPA 1988. In light of this, Ms Loftus, appearing for the Crown, suggested that the court might offer some guidance.

The court stated that in offending of this kind the sentencing court must retain flexibility and gear a sentence to the circumstances of the particular offence or offences and to the circumstances of the particular offender [my favourite answer to any legal questions]. However, the court offered the following (non-exhaustive) considerations that are likely to be relevant in sentencing cases of this particular kind, involving the unlawful distribution of infringing copyright articles [at 22]:

Preparing for Season 6 Prison Break Auditions

“(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.”

Applying the present case to this list of considerations it would seem that since the offender did not make a financial gain (point 3), had mental health issues (point 4) and pleaded guilty (6) the more influencing considerations might be deterrence (point 1) the length of time, particular after receiving cease and desist notices (point 2).

It will be interesting to see how the courts apply these guidelines in future cases of sentencing in relation to copyright infringement offences. The judgement will no doubt be music to the ears of the rights holders. Although this Kat is not personally convinced of effectiveness of deterrence. She is reminded of an article that referred to it as "the deterrence death spiral" but wonder's what readers thoughts are. An interesting previous post on criminalisation, the logic of criminals and the economics of IP crime here.

Photo credits: fine_plan and Ben Seese