Wayne Evans, a DJ and website operator from Liverpool, has lost an appeal against a 12 month jail sentence for facilitating the illegal distribution of copyright protected musical works.
Evans operated several websites which provided links to torrent sites and directed users to make unauthorised downloads. One website in particular gave users access to the UK Top 40 singles charts, which resulted in a notional loss of royalties of over £1,040,000.
Evans was charged for two offences relating to distribution of articles which infringe copyright by reference to section 107(1)(e) of the Copyright, Designs and Patents Act 1988 (“CDPA”) and one offence under the Fraud Act 2016. Evans, who had no previous convictions, pleaded guilty at the first opportunity.
Section 107(1)(e) of the CDPA states that:
A person commits an offence who, without the licence of the copyright owner-
(e) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,
an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work.
The central issue in the case was the length of sentence to be given to Evans. He was initially sentenced to 12 months and 6 months imprisonment for the copyright offences, and 10 months imprisonment for the fraud offence. All sentences were to run concurrently, meaning the total sentence was 12 months immediate imprisonment.
Evans appealed against his sentence, arguing that 12 months imprisonment was excessive in the circumstances. Emphasis was put on the pre-sentence report, which noted that Evans had a difficult personal background and suffered with mental health issues. The report stated that he was of previous good character and unlikely to re-offend.
The Court of Appeal dismissed Evans’ appeal, in particular noting the importance of creating a deterrent against substantial copyright infringing activities. Lord Justice Davis stated that “in the context of intellectual property offending, an element of deterrent sentencing is justified in this context; not least also because of the difficulty in tracking down and investigating such offending.” Although the court accepted that he was not motivated by financial gain, they took into account Evans’ conduct, who persisted in facilitating copyright infringement even after receiving numerous cease and desist notices. Evans’ websites operated for a lengthy period of time and he had used sophisticated equipment to commit the offences.
In dismissing the appeal, the court suggested the following (non-exhaustive) considerations that are likely to be relevant in sentencing cases of this particular kind:
- Illegal downloading and distribution is often difficult to investigate and detect. Deterrent sentencing in such a context is appropriate.
- The length of time (including any continuation after service of cease and desist notices) of the unlawful activity.
- The profit accruing to the defendant as a result of the unlawful activity.
- The loss accruing to the copyright owners (so far as it can accurately be calculated) and the wider impact upon the music industry.
- Criminal copyright offences are not the subject of any Definitive Guideline; however a judge may find it helpful to have regard to the Definitive Guidelines on fraud, bribery and money laundering offences.
- Personal mitigation, assistance to the authorities, and pleas of guilt are to be taken into account in the usual way.
- Immediate custodial sentences are likely to be appropriate in cases of illegal distribution of copyright infringing articles, unless the activity is very amateur, minor or short-lived.
Websites that facilitate copyright infringement on Evans’ scale have a significant and detrimental impact on the music industry. The court’s decision highlights that infringing activities of this sophisticated nature will be taken very seriously. The strict guidelines laid down above by the Court of Appeal (and in particular the recommendation of an immediate custodial sentence for offenders) are sure to be welcomed by copyright owners across all fields.