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Court of Appeal confirms deterrent sentences for copyright infringement

30 March 2017

In Regina v Evans the Court of Appeal has provided guidance on the appropriate level of sentencing for criminal offences under the Copyright, Designs and Patents Act 1988. The Court of Appeal confirmed that the sentence should have a deterrent effect.

Background

Mr Evans operated a number of websites which directed users to streams which allowed them to access copyright music. Although Mr Evans’ websites did not contain infringing material, it directed users to torrent websites where the music could be downloaded. Over 600,000 downloads were made, with a notional loss of royalties of over £1 million pounds. Mr Evans also ignored cease and desist letters. After a police search and being charged, Mr Evans pleaded guilty at the first available opportunity to two offences of distributing an article infringing copyright and one offence under the Fraud Act 2016.

Mr Evans was sentenced to 12 months and 6 months imprisonment for each of the copyright offences and 10 months for the offence relating to fraud. The sentences were to run concurrently which meant that Mr Evans’ sentence would be for 12 months imprisonment. Mr Evans appealed the length of his sentences as being excessive.

Decision

Evans argued that he was not motivated by financial gain and did not make any significant commercial gain, pleaded guilty at the first opportunity, was of previous good character and was unlikely to reoffend, and had some personal issues, including mental health problems.

Although Evans was not motivated by financial gain, the Court of Appeal emphasised that the copyright holders were deprived of royalties because of Evans’ conduct and this damages the music industry’s important economic contribution to the economy, notwithstanding the difficulty in placing a precise figure on this loss. Furthermore, he did ignore cease and desist letters and persisted in his activities for a period of several years. In the circumstances, an immediate custodial sentence was warranted, and a sentence of 12 months was appropriate and his appeal was dismissed.

Comment

Due to the difficulty in detecting the infringement of intellectual property rights a deterrent sentence will usually be appropriate in most cases. This judgment makes it clear that any infringing activity, which is more than a very amateur, minor or short-lived, will usually attract an immediate custodial sentence. This judgment is welcome news for rights’ holders.

Please click here for a link to the judgement.

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