Digital Economy Bill

Written evidence submitted by Good Stuff Ltd (DEB 06)

Submission to the Public Bill Committee on the Digital Economy Bill

Summary

1. The proposed amendments to the Copyright, Design and Patents Act 1988 by sections 26.2 and 26.4 of the Digital Economy Bill include provisions which are too subjective and unclear:

· "risk" is not sufficiently quantified

· The definition of "loss" is too broad

About this submission

2. Good Stuff Ltd is a company which specialises in web publishing and the provision of Internet consultancy services. This submission concentrates solely on those aspects of the Bill which relate to fields of work and consultancy in which Good Stuff Ltd is active.

Introduction

3. Copyright is, for the most part, a civil matter, and only enters the realm of criminal offences where infringement of it is particularly egregious.

4. It is important, therefore, that any legislation which makes certain forms of copyright infringement a criminal offence, rather than a civil liability, sets a clear threshold for criminal liability.

5. It is a fact that users of the Internet vary considerably in their understanding both of the technology involved and the law which applies to it. Casual copyright infringement is common, particularly on blogs and social media. In some cases, this may fall within the fair dealing provisions of the CDPA, but in many cases it does not.

6. Where it does not fall within the fair dealing provisions, it is for the most part not intended to be damaging (or significantly damaging) to the owner of the rights.

7. Casual, non-commercial infringement that does not cause significant quantifiable loss to the owner of the rights should not be a criminal offence.

Key concerns

8. The proposed amendment to the CDPA 1988 include a new mens rea whereby the person must both a) be aware that he is infringing copyright and b) either intend to make a monetary gain for himself or another or know or have reason to believe that his actions will cause loss to the owner of the right or expose the owner of the right to risk of loss.

9. While the replacement of the CDPA’s current concept of "prejudicial effect" is welcomed, the wording as currently proposed is not necessarily an improvement.

10. The requirement in the proposed new wording of clause 2A.a, that infringement is intentional or, at least, reasonably knowing, is appropriate.

11. Condition 2A.b.i, that infringement is for gain of the infringer or another, is also appropriate.

12. However, condition 2A.b.ii is problematic. Specifically, the problem is in the concept of "expose the owner of the copyright to a risk of loss".

13. The proposed legislation does not quantify "risk". Without this, even a highly improbable outcome could be characterised as exposing the owner of the rights to risk of loss. Is a one in a million chance of loss a risk that would be covered by this clause? One in ten million? One in a hundred? One in ten?

14. Without some quantification of risk, condition 2A.b.ii becomes meaningless. Almost any action carries at least some risk of undesirable consequences. As worded, this clause would allow a prosecution for almost any infringement which satisfies 2A.a, as the risk of loss will almost always be present even if only very remotely.

15. In order to avoid this, the wording needs to make it clear that only a loss which is likely, rather than merely being a remote possibility, is relevant to the offence.

16. Also, as currently worded, even a loss which is entirely trivial would still transform copyright infringement from a civil matter into a criminal offence.

17. Since almost any infringement of commercially published material carries with it at least some potential for loss, even if only the hypothetical foregone willingness to pay of the consumer, this makes almost any infringement of commercially published material an offence.

18. Again, this represents a major change from the current legislation which attempts to draw a distinction between trivial and non-trivial infringement, via the terminology of "prejudicial effect".

19. As well as the new mens rea, therefore, the revised wording of the CDPA should also explicitly include the principle of de minimus so that trivial infringements remain purely a civil matter.

20. The third issue is the wording of the new clause 2B.b, specifically the reference to "not getting what one might get".

21. As with risk, "might get" is too vague. One might write an article published on the Internet which is syndicated around the world and earns one lots of money. This might be undermined if someone infringes copyright in the article. One might think that such an infringement should be a criminal offence, irrespective of how implausible that scenario is. But, if so, this would criminalise almost all intentional or knowing infringement which meets the conditions of clause 2A.a. One would be very surprised if this was, in fact, the intent of the legislators.

22. A more appropriate wording of this clause would use the concept of "reasonable expectation" of gain, rather than simply what "might" be gained.

23. Without these changes, the Bill as currently drafted will result in a massive increase in the potential scope of the offences set out in the CDPA.

24. As currently worded, almost any possible future gain, however unlikely, that does not, in fact, occur can be considered a loss, and almost any risk, however remote, of loss, renders a deliberate or knowing infringer liable to prosecution.

25. This would include such common activities as posting a screenshot of a website on social media, or copying and pasting an extract of text from a commercial website onto a personal and non-commercial blog page, as well as what are presumably the real targets of this legislation such as the operators of networks for distributing infringing material online or distributors and sellers of counterfeit CDs and DVDs (commonly known as "piracy").

26. It is difficult to believe that this is actually the intention of the legislators, and therefore the wording of the proposed amendments to the CDPA needs to better reflect the true intent.

Recommendations

27. In section 26.2 of the Digital Economy Bill, make these changes:

28. Replace the proposed wording of CDPA 107.2A.b.ii with

· knows or has reason to believe that communicating the work to the public will cause, or is likely to cause, significant loss to the owner of the copyright.

29. Replace the proposed wording of CDPA 107.2B.b with

· "loss" includes a loss by not getting what one can reasonably expect to get.

30. Although the above comments relate specifically to the proposed changes to the wording on copyright (section 26.2 of the Bill), it would be both consistent and logical to make the equivalent alterations to the section which amends the wording on a performer’s making available right (section 26.4 of the Bill).

October 2016