09 January, 2014

Retrospective - Is Piracy Theft?

Rhetoric surrounding copyright infringement can often be hyperbolic or just outright incorrect. Whether one would want to call it 'piracy', 'theft' or 'illegal copying', the end result often is a discussion as to what copyright infringement actually is. Is the copying of intangible content theft, even when the owner of the copyrighted material doesn't actually lose the tangible or intangible material in question? This hasn't been addressed directly in most common law courts, purely due to the fact that criminal acts and civil wrongs don't intersect as much when it comes to the infringement of intellectual property rights; however the question was indirectly answered, to an extent, in the House of Lords over 30 years ago.

The decision in question was Rank Film Distributors Ltd v Video Information Centre, decided in 1982. The case concerned the making of video cassettes of films, which the plaintiffs were the copyright holders of, and selling those videos. Under this infringement the plaintiffs had acquired a motion from the court to enter the defendants' premises and to infringe any and all copies of the aforementioned films, while also compelling the defendants to hand over any relevant documents and to answer questions relating to the supply and sale of the videos. The defendants argued, initially unsuccessfully, that should they comply they might expose themselves to criminal proceedings, or in other words, incriminate themselves. Upon appeal they argued further that a copyright action would be able to claim privilege from discovery due to self-incrimination; a question that the House of Lords would have to answer.

Although the case, prima facie, relates to evidentiary matters more so than copyright, the case is important in answering the question posed in the title of this article. Lord Denning, in his judgment for the Court of Appeal prior to the House of Lords' judgment, discussed the potential criminal liability issues, and the court order that was concerned; something which the House of Lords did not dispute in their deliberations. The order in question which was dealt with in the case was an 'Anton Pillar order', one which stems from the case of Anton Piller KG v Manufacturing Processes Ltd. Under the Theft Act 1968 a defendant or defendants are protected from self-incrimination through the provision of evidence that might do so; however the important fact is that it only pertains to offenses under the Act itself, namely theft in this instance. His Lordship distinguishes copyright infringement from the theft of regular property: "[the Theft Act 1968] covers nearly all kinds of property. But it does not cover the form of industrial property known as copyright". Through his Lordship's rationale, one cannot be convicted of theft under the Theft Act, as it does not apply to the 'stealing' of intellectual property. His Lordship put forth several analogies, and finally concluded that "There is no reason why a privilege against self-incrimination should be available in copyright cases when it is not available in cases involving the other forms of industrial property". This is "...because the infringement is not a criminal offence".

Even pirates need to change their business model (Source)
In the House of Lords' majority decision, Lord Wilberforce summarized the issue at hand, and the law's application: "The appellants' submission amounts to a request to the courts, by judicial decision, to extend this statutory provision [under section 31 of the Theft Act 1968] to civil proceedings generally, or at least to these proceedings. But this, in my opinion, the courts cannot do". By refusing to extend the provision to civil cases, more specifically copyright infringement, his Lordship clearly distinguishes copyright infringement from theft, although not in express terms. In the end the House of Lords denied the appeal and rejected the Anton Piller order, and allowed for the protection against self-incrimination to be used in copyright infringement cases. Even though the House of Lords did not discuss theft and copyright in more depth, Lord Fraser did discuss it in his brief judgment. In his Lordship's mind "The risk of prosecution under the Theft Act may, I think, be disregarded as remote, because that Act applies to theft of "property" which is defined in a way that does not appear to include copyright, but only, so far as this appeal is concerned, to the physical objects such as tapes and cassettes which are of small value by themselves". Clearly therefore copyright infringement could not be defined as 'theft', at least referring to the terms used in the United Kingdom Theft Act.

Similar views have been expressed under US case law, more specifically in the case of Dowling v United States, where the Supreme Court of the United States saw that "...interference with copyright does not easily equate with theft, conversion, or fraud... [as the infringer] does not assume physical control over the copyright; nor does he wholly deprive its owner of its use". The US Supreme Court, although arriving to it through a different argument, seems to align itself close to the view of the UK courts, clearly differentiating copyright infringement as a civil action from the criminal action under theft.

As one can see above the question of whether copyright infringement, or more colloquially 'piracy', equates to theft is answered in the negative. This does not mean that copyright holders are not losing monetarily because of copyright infringement, but the rhetoric surrounding copyright infringement is inflammatory should it be placed in the same category as theft. The two offenses need to be distinguished as such.

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