Criminal copyright proposals: are they appropriate in the information era?

Abstract

There has been an increasing tendency to implement criminal IP provisions into UK law. Much of the pressure for this has come from the European Union, since the majority of its member states have existing IP systems which incorporate criminal IP provisions. The use of criminal provisions in the UK has not been as widespread, and so care needs to be taken in implementing such systems in the UK because the fundamentals of the IP systems are different. Continental European systems focus around the inherent rights of authors, and thus are based around Kantian and Hegelian notions about the development of the person, whereas the UK system is based around economic rights that can be transferred to, among others, publishers. This paper proposes that the current UK law should not be reformed so as to have increased criminal penalties. This is particularly so in the information age where the UK system of economic IP rights is becoming increasingly conflated; where recipients are gradually becoming users of content, and where convergence of technologies may lead to overlapping and unexpected legal complexities. It is important to work towards certainty in an environment of legal uncertainty and increasing criminal penalties should not be considered unless the legal situation is more certain. However, it is submitted that increasing technological convergence will mean such certainty will never be forthcoming, and so increasing criminal penalties will never be desirable if content recipients and content users are to utilise technological convergence in order to become more involved within the information age.