Expert opinion: Online copying is a crime that kills creativity

As the Government considers what action it should take following a major report into supporting the creative economy, Nottingham Law School's intellectual property expert Janice Denoncourt calls for measures to help fund better policing of IP crime.

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The proceeds of intellectual property theft should be seized

As the Government considers what action it should take following a major report into supporting the creative economy, Nottingham Law School’s intellectual property expert, Janice Denoncourt, calls for measures to help fund better policing of IP crime

Conventional wisdom holds that copying kills creativity and that the intellectual property (IP) laws should protect against unlawful copying to enhance innovation and economic success.

This philosophy underpins the recommendations made by the Culture, Media and Sport Committee's report, Supporting the Creative Economy, aimed at shaping government intellectual property (IP) law and policy which has recently been debated and scrutinised by MPs in Westminster.

The committee has warned that the UK's extraordinarily successful creative industries may be jeopardised by any dilution of IP rights and the failure to tackle unlawful use and copying.

The UK Intellectual Property Office advises on its website that: "If you own an intellectual property (IP) right such as copyright, design, patent or trade mark, then others cannot manufacture, use, sell or import it without prior permission. Unauthorised use of someone's IP can be classed as an IP crime and may lead to prosecution."

As the scale of unlawful copying is growing, the committee has called for the maximum penalty for serious online copyright theft to be increased to ten years imprisonment.

This would align the punishment for copyright infringement with stealing offences in the physical world.

Does unlawful copying of copyright material warrant a long custodial sentence? Is this too little, too much or just right?

Previously, most criminal IP offences in the UK only provided for a three to six-month period of imprisonment. To provide for a potential custodial sentence of up to ten years is a big leap.

Does the punishment fit the crime?

Physical objects such as cars or computers have a monetary value. Embezzlement and fraud relates to stealing money.

Stealing online copyright work deprives the owner of earning a living through licence fees and royalties – this loss of income equates to money.

It is easy to see how deliberate intentional copying on a commercial scale may justify a long custodial sentence. However, rather than put serious copyright infringers in prison, which is expensive, an option to tackle IP crime may be to increase the use of the Proceeds of Crimes Act 2002.

This was introduced to deter crime by making sure criminals lose their unlawful gains. Money taken from criminals could be returned to society, for example, to support the IP Crime Unit to ensure that "crime does not pay".

Businesses involved in the creative economy need practical advice and guidance on preventing and dealing with unlawful copying when it occurs. The committee has recommended that a "creative hub" be established for innovators to access advice as to how to protect and enforce their valuable IP rights.

This should be welcomed and, following the Westminster Hall debate, it is now down to the policy makers and law makers to act.

Janice Denoncourt
Senior lecturer, Nottingham Law School, Nottingham Trent University

  • Notes for editors

    Nottingham Law School is an IP law education hub within the Midlands offering intellectual property law courses at undergraduate, postgraduate and professional level.

    Ms Denoncourt is module leader for Sport, Intellectual Property Law and Commerce (LLM); Intellectual Property Innovation and Health (LLM); Company Law (LL.B Distance Learning); Intellectual Property Law (LL.B Distance Learning) and Law for Business (Business School). She is an examiner for the LLM in Intellectual Property Litigation.

    Her main research interests lie in the area of intellectual property law and education, business law and entrepreneurship

Expert opinion: Online copying is a crime that kills creativity

Published on 20 February 2014
  • Category: Press; Nottingham Law School

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