Criminal liability for copyright infringement

Copyright infringement is a civil wrong and where infringement occurs a claim may be brought by the copyright owner or a person who has an exclusive licence to the work through the civil courts. In certain circumstances copyright infringement can amount to a criminal offence as well.

Criminal offences relating to copyright infringement

Under s 107 of the Copyright, Designs and Patents Act 1988 (CDPA 1988), you commit a criminal offence if, without the licence of the copyright owner, you:

  • make for sale or hire an article which is, and which you know or have reason to believe is an infringing copy of a copyright work;
  • import into the UK otherwise than for your private and domestic use an article which is, and which you know or have reason to believe is an infringing copy of a copyright work;
  • possess in the course of a business an article which is, and which you know or have reason to believe is an infringing copy of a copyright work with a view to committing any act infringing the copyright;
  • in the course of a business sell or let for hire or offers or exposes for sale or hire or exhibit in public or distribute an article which is, and which you know or have reason to believe is an infringing copy of a copyright work;
  • distribute otherwise than in the course of a business an article which is, and which you know or have reason to believe is an infringing copy of a copyright work to such an extent as to affect prejudicially the owner of the copyright (informally swapping computer games via an enthusiast’s network has been held to amount to such an offence);
  • make an article specifically designed or adapted for making copies of a particular copyright work and which you know or have reason to believe that it is to be used to make infringing copies for sale or hire or for use in the course of a business;
  • possess an article specifically designed or adapted for making copies of a particular copyright work and which you know or have reason to believe that it is to be used to make infringing copies for sale or hire or for use in the course of a business;
  • communicate copyright work to the public in the course of a business, or otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner where you know or have reason to believe that, by doing so, you are infringing copyright in that work;
  • ‘cause’ the public performance of a literary, dramatic or musical work where you know or have reason to believe that copyright would be infringed (you ‘cause’ such a performance only if you perform it yourself or your servants or agents perform it – the owner of premises will not be liable by letting out the premises in which the performance is held);
  • ‘cause’ the playing or showing in public of a sound recording or where you know or have reason to believe that copyright would be infringed (simply delivering a film to an exhibitor has been held to be insufficient).

Where an offence is committed by a company or another type of organisation the directors, managers, secretary or similar officers of the company or organisation or a person who purports to act in one of these capacities also commits a criminal offence if they consented to or connived (knew was what going on but turned a blind eye and did nothing about it) in the act.

Search warrants

A search warrant may be issued by the magistrates’ court where there are reasonable grounds to believe that one of the above offences has been or is about to be committed and if there are reasonable grounds to believe that there is evidence relating to the offence at the premises to which the search warrant relates.

Where a search warrant is issued a police constable is able to use reasonable force when conducting the search and has the power to seize any article which he reasonably believes is evidence that an offence has been or is about to be committed.

A search warrant remains in force for three months from the date upon which it is issued.

Penalties and enforcement

If you are found guilty of most of the above offences you may receive a fine and/or face imprisonment for up to three months. However, the maximum sentence for infringing copyright in a work by communicating it to the public in the course of a business, or otherwise than in the course of a business to such an extent that it prejudicially affects the owner of the copyright, is two years.

The criminal courts can also, in certain circumstances, order the delivery up to the copyright owner or to such person as the court may direct of any infringing material or article specifically designed or adapted for making copies of a particular copyright work. The criminal courts can also order the forfeiture of any such material or article.

Relationship between criminal and civil proceedings

Where criminal and civil proceedings are commenced in tandem either court may ‘stay’ (put on hold) the proceedings in their court pending the outcome of the other set of proceedings.
Any admission or statement made by a person or information provided by him pursuant to a court order in the course of the civil proceedings is inadmissible in the criminal proceedings.
Civil proceedings are more common than criminal proceedings for two main reasons. Firstly, the standard of proof is lower in the civil courts and it is not necessary to prove that a person knew or reasonably believed that they were carrying out an act in civil proceedings. Secondly, the criminal courts do not have the power to order ‘damages’ (compensation) for losses suffered as a consequence of copyright infringement.