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The consultation considered that there is a relatively high incidence of ISD use (19% of the adult population) and is committed to ensuring that use of ISDs – which represent a serious breach of copyright law – is minimized.
At the conclusion of the consultation – and notwithstanding that more than half of the consultees supported some form of change - the Government concluded that the current legislative framework is sufficient to capture the supply and use of ISDs, that the sentencing powers available to the courts are adequate, and that this is illustrated by a number of recent successful prosecutions in this area. The Government has indicated that it will try to disrupt the supply chain (for example through blocking injunctions and working with developers/consumers), that it is committed to ensuring that Trading Standards officers have sufficient training, and that the Police Intellectual Property Crime Unit (PIPCU) will continue to prioritise its resource in this area.
Even so, the Government recognised the pressure on resources of the relevant enforcement bodies. In the recent past, the Crown Prosecution Service and, more commonly, local Trading Standards undertook a reasonable proportion of copyright infringement prosecutions. However, budget and competing priorities limit the number of cases that can realistically be investigated and prosecuted by statutory authorities.
However, the law recognises that the lack of public resources should not be an obstacle to the proper enforcement of the criminal law. Anyone has the right to bring a private prosecution, unless the offence is one which requires the consent Director of Public Prosecutions (DPP) or Attorney-General. In cases involving more serious offences, private prosecutors are entitled to recover reasonable costs of investigation and prosecution from central government funds, even if the defendant is acquitted, provided that they bring and pursue a prosecution in good faith. Private prosecutors are able to retain a greater degree of control over the prosecution, allowing resource it appropriately, choose their own lawyers, and decide what charges to bring. In addition, information and intelligence gained as part of one prosecution can assist in prosecuting others.
Fieldfisher's criminal prosecutions team works across a number of the firm's departments (principally the Public & Regulatory, Intellectual Property, and Dispute Resolution groups) and has a wealth of experience in advising on and conducting investigations and criminal prosecutions for a range of public bodies and private organisations. Members of our team have acted for and advised bodies such as statutory regulators, copyright owners, commercial organisations and individuals in criminal matters. If this is an area you'd like to discuss further please contact James Seadon or David Northfield.