Is operating a website that provides links to torrent websites which facilitates unauthorized downloading of musical works a criminal offence? If so, can the operator of such sites expect jail time as punishment for this crime? In a recent decision of the English and Wales Court of Appeal in Evans, R. v  EWCA Crim 139 (14 February 201), the accused, Mr Evans, was convicted of two offences of distributing infringing copies of musical works and was sentenced to 12 months in prison for these crimes.
The accused operated several websites which enabled users to access and download infringing copies of musical works. It appears that no copies of the works were stored on the sites. Rather, Mr Evans provided links to torrent sites which were used to obtain unauthorized copies of, inter alia, the two musical works he was charged with illegally distributing.
He was charged and convicted under s107(1)(e) UK Copyright, Designs, Patents Act, 1988. This section, which is very similar in wording to section 42(1)(c) of the Canadian Copyright Act, creates an offence for distributing infringing copies of works knowing or where there is reason to believe the copies are infringing.
Criminal liability for making or dealing with infringing articles, &c
107(1) A person commits an offence who, without the licence of the copyright owner—…
(e) distributes 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 he knows or has reason to believe is, an infringing copy of a copyright work.
The central issue in the case was the sentence to be given to the accused. He had no prior criminal background and made very little money from operating the sites (paypal donations). He was sentenced to 12 months in prison. He appealed, arguing that the sentence was too harsh. The Court of Appeal rejected the appeal noting the importance of creating a deterrence against copyright infringing activities.
In the course of his excellent submissions on behalf of the appellant Mr Parry said that a total sentence of 12 months’ imprisonment was excessive in the circumstances of this particular case. In particular, it was said that such a sentence failed sufficiently to acknowledge that the appellant was not motivated by financial gain and scarcely did gain. It is said also that he had mental health issues and related personal mitigation. He was of previous good character and was most unlikely to re-offend. In that regard, emphasis was put on the pre-sentence report which contained views precisely to that effect and also explained the difficult personal background of the appellant.
In all the circumstances, it was submitted, and whilst this offending did cross the custody threshold, the resulting sentence could and should have been suspended and, further or alternatively, could and should have been a shorter sentence in terms of length.
Having considered the matter, our conclusion is that we cannot agree. The appellant may not have been motivated by gain for himself. But there was undoubtedly a real loss to the owners of the relevant copyrights and related performers. Further, quite apart from such loss as could be identified and quantified, such offending always has a wider detrimental impact on the music industry and its profitability: and the music industry is an important economic contributor to society. That detriment is none the less real for being difficult to quantify. As has, in fact, long been established in the context of intellectual property offending, an element of deterrent sentencing is justified in this context; not least also because of the difficulty in tracking down and investigating such offending. Most certainly here the appellant had strong personal mitigation. But his conduct was sustained and he persisted in it even after receiving the cease and desist notices. He carried on his activities for a lengthy period of time and he used sophisticated equipment for the purpose.
In our view, the judge in his careful and thorough sentencing remarks addressed all relevant points. He correctly appraised the position. He had due regard to the plea and all other matters available to the appellant in terms of mitigation. We consider that overall the sentence of 12 months’ immediate imprisonment was a well-judged sentence; and at all events cannot be said to be excessive.
The Court also used the opportunity to set out sentencing guidelines for use in criminal copyright cases. This included a guideline that “immediate custodial sentence is likely to be appropriate in cases of illegal distribution of copyright infringing articles”.
The position must be 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. Nevertheless, 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…
(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.
By: Barry Sookman, Partner
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