(b) otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,
Laddie et al (5th), [20.26], p 823, referring to the phrase in section 23(d) of the CDPA, calls it “a sweeping up provision which would appear to cover most forms of handling of infringing copies not covered elsewhere.” Referring to the same provision, Copinger (17th ed), [8-15] 689 states: “It is not, however, easy to imagine a case in which distribution is neither in the course of trade or business nor prejudicial to the owner of the copyright, except perhaps where only a few copies are distributed to persons who would never have bought the work anyway.”
Overall, one might conclude that on the existing law:
(ii) Prejudice need not necessarily be economic;
(iii) It can be direct as well as indirect;
(iv) It is not an onerous standard;
(v) It might require more than distribution or communication to one or two person, but once the number is in the 20s or 30s, it seems, one can assumed prejudicial effect (through loss of sales).
|Actus reus ...|
Clause 26 of the Digital Economy Bill 2016 proposes to amend this. The definitions of gain and loss seem to derive from section 5 of the Fraud Act 2006 (though restricted in clause 26).
a. Broadening the actus reus
As before, there must be a communication to the public. There is no longer a requirement that the communication be in the course of business, or that there be a prejudicial effect. Instead, the new provision offers a narrowing of the mental (mens rea) requirement.
b. Narrowing the offence: the mens rea element
The proposed clause would also narrow the scope of the offence by elaborating the mens rea requirement. If enacted, this requires not just (as now) that the alleged offender knows or has reason to believe there is copyright infringement, but also that he she (i) intends to make a gain or (ii) knows or has reason to believe that the act will cause a loss or expose the owner to a risk of loss.
It seems that “intends to make a gain for [himself] or another person” is regarded as approximating to the previous condition that the act be “in the course of business.” Thus, for example, a publican who, without a licence, shows a broadcast of a football game to its customers doubtless does so with intent to gain (attracting customers, increasing sales). A more difficult example is a lecturer who includes unlicensed images (falling outside the CLA/DACS licence) on its “slides”. Here there is a communication “in the course of business” (under existing law), but whether it can be said to be with an intent to make a gain is more difficult. There is no monetary gain for the lecturer, and probably not in any real sense for the employer, the University. So this might be an example where the changed language brings about a sensible redefinition.
However, private actors not acting as business people might intend to make some sort of gain, and thus now be caught within the criminal regime. One example might be uploading to a platform a sound recording that infringes copyright by employing a “sample” where some small portion of the platform’s advertising revenue will be paid to the uploader. One might wonder whether posting user-generated content should be so easily categorised as a criminal offence. Another example might be a person who establishes a blog and includes unlicensed images reproduced from sites elsewhere on the Internet. As long as the “gain” they are hoping for is reputational, then there is no criminal act (under this head). However, if in due course they hope to sell the blog, it might be that there is the relevant “intent to gain.”
The loss component of the offence can also be unpacked. A Defendant will be liable where he/she
has reason to believe the act will cause a loss;
knows the act will expose the owner to a risk of loss;
has reason to believe the act will expose the owner to a risk of loss.
If a Defendant knows, or has reason to believe, that the act (communication to the public) will mean that a single person, who would have purchased a copy of the work (or access to it, for example, through an Internet stream), will not do so (for example, because they can and will now download a copy, or because having read the work or seen the images, they no longer would want to access it), it seems to follow that said Defendant has reason to believe the infringing act will cause a loss. Equally,creating a hyperlink to material that is normally subject to conditional access by payment would cause loss in the relevant sense.
If a Defendant knows, or has reason to believe, that the act (communication to the public) could be licensed, and that licence would involve payment, then it also seems to follow that said Defendant has reason to believe the infringing act will cause a loss. One example might be playing music at a garden fete, knowing that a licensing scheme is operated by the PRS, and thus not obtaining a licence has cause loss to the copyright owner.
|A case in which the mens rea is self-evident|
c. Mens rea v prejudicial effect
While the differences between the existing law and the proposed law are rather subtle, ultimatey the effect of the new clause will be mostly to broaden the scope of criminal liability:
(ii) It clearly broadens the concept of “prejudicial effect” to include any financial loss (whereas under the existing law it is conceivable that trivial levels of financial loss might not have amounted to a “prejudicial effect”);
(iii) It extends the breadth of “effect” to include "risk of loss".
(ii) By replacing prejudicial effect with losses in terms of money, it excludes from consideration non-monetary losses (eg losses of privacy);
(iii) It adds a new mental (“mens rea”) element with respect to the gain/loss in question, which makes liability dependent not merely on the likelihood of loss (the provision in fact seems to contemplate that such loss is certain – it “will” occur), but on an appreciation of the certainty of such loss by the Defendants. In some situations, this might mean that the Defendant would need to know about the relevant licensing arrangements, at least at a general level. A Defendant who downloads and posts an image on a blog might well be able to argue that it appreciated this was a technical infringement of copyright, but did not believe, and had no reason to believe, it would cause any loss (for example because the image had already circulated widely on the Internet).