My Lords, Amendment 18, tabled by my noble friend, Lord Clement-Jones, would increase the maximum penalty for online copyright infringement to 10 years. Under the Copyright, Designs and Patents Act—CDPA—the current maximum penalty that can be incurred by online copyright infringement is two years, while for physical copyright infringement, the maximum penalty available is 10 years. This is not a new proposition. A similar recommendation was made by Andrew Gowers in the report he wrote for the previous Government. At the publication of the Gowers report, the previous Government indicated their intention to implement all of its recommendations. However, after a consultation, they decided to increase the financial penalties to £50,000 but left the maximum custodial sentence untouched. I am sure that they did not reach their conclusions on this matter lightly.
This issue is sometimes presented as if there is a gap in the fabric of criminal offences which apply in this area, and that this change will plug that gap. I am not entirely convinced. The statute in question is not the only way in which criminals can be charged for copyright infringement. There is already a range of options for prosecutors looking to obtain a conviction for such activities. Many of these require a lower evidential burden than copyright offences, require less specialist knowledge and offer the sort of sentencing options which my noble friend seeks to add to this offence. Indeed, I am told that prosecutors would usually prefer to charge under the Fraud Act 2006, which carries a maximum penalty of 10 years, or use “conspiracy to defraud”, which also carries a penalty of 10 years. The Fraud Act in particular seems to have met the challenges posed by developments in technology and internet crime, helping industry to report crime as fraud, and has garnered praised from the City of London Police, among others.
There is another issue here of sentence length, by which I mean convictions and sentences actually handed down, rather than those that are theoretically available. The average custodial sentence given for physical copyright infringement under CDPA offences in 2011 was 12.7 months, the highest for five years. So the questions that occur to me are these: is this a necessary change? Is it a useful change to make? I would like to reflect on this matter further, and perhaps have the benefit of views from experts and practitioners in the field. I therefore ask my noble friend if he would be prepared to withdraw his amendment in return for an assurance that I will set in hand a study of this question, the timing of which I will confirm following the Summer Recess. If there is a need for a change to the law then I will, of course, look for a suitable legislative opportunity.
I turn now to the private copying exception, to which Amendment 19 relates. This is a measure that the Government are preparing to introduce under
secondary legislation, separate to this Bill, as the noble Lord, Lord Stevenson, pointed out. I remind noble Lords of the lengthy Committee discussions which have already been held on copyright exceptions, and of the detailed information already provided to this House on the Government’s ongoing technical review process. Noble Lords will recall my invitation for contributions to that process from all interested parties. I am very grateful for the contributions we have received to this review process so far. I also remain committed to having further debate on these issues prior to the draft regulations being laid before Parliament. The noble Lord, Lord Stevenson, asked when the exceptions debates might take place and about the timing. I believe that we agreed that the timing would need to be agreed through the usual channels. I would like to await the results of these discussions first before I commit to a particular time.
In light of all this—and I am sorry to strike a rather discordant note—I will admit that I am surprised, and slightly disappointed, to see that my noble friend Lord Clement-Jones has chosen to lay this amendment on private copying, on Report, on one of the proposed changes to copyright exceptions. It is rather late in the day for an amendment that would add a new clause to the IP Bill, and appears to ignore the many opportunities there have been to debate the private copying exception. However, I will endeavour to provide my noble friend with some reassurance in the interim.
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By introducing a copyright exception for private copying, it is the Government’s aim to give consumers greater certainty over what they can do with products they have bought. It will not allow people to bypass commercial markets to acquire products for free. Instead it sets out basic rules on how people can use copies that they have already purchased lawfully. The new law will allow people to make further copies for their own personal use but will not allow them to give any such copies to other people. To that extent, the new exception will be very narrow—the narrowest in Europe. It will only grant very basic permissions that are necessary to allow reasonable consumer use.
Consumers in other common law countries, such as Australia and Canada, already benefit from similar laws, as do consumers in most of Europe. In many ways, we are only playing catch-up by giving British consumers some of the advantages people already enjoy in many countries around the world. The proliferation of licences online has created even greater confusion for consumers. Consumers deserve basic rights, set out in law, to use the things they have bought without having to deal with multiple and complex licences. The approach set out in this amendment, which foresees a greater role for licences, risks undermining that principle. The Government’s view is that this narrow private copying exception will, first, make life easier and simpler for ordinary people; secondly, remove unnecessary regulation from businesses; and thirdly, help our copyright law catch up with the rest of the world.
My noble friend Lord Clement-Jones asked why consultation would be necessary. It is important that the Government take a proper look at what the impact
of increased sanctions would be. An increase in prison sentences of eight years is a serious one and the decision needs to be given the appropriate level of consideration and be based on the right evidence. Making changes such as those in the first amendment without first assessing their impact can often lead to a complex and confusing statute book that is unable to respond to new crimes as technology and techniques advance. In view of that, I ask my noble friend to withdraw his amendment.