In an important speech delivered on the occasion of the the Stephen Stewart Memorial lecture in 1995 and later published as "Copyright: Over-Strength, Over-Regulated, Over-rated," 18 European Intellectual Property Review 253 (1996), the great English judge and intellectual property scholar Sir Hugh Laddie questioned the appropriateness of criminal proceedings for copyright infringement. Since I can't write as well as Sir Hugh, I will reproduce his remarks:
Those of you who have hired video films may have noticed that, when the tape is played, a message comes up on the television screen which says "VIDEO PIRACY IS A CRIME'. Well it is. Criminal provisions have been found in Copyright Acts for some years but now, apparently for the first time, they are being used in earnest. A recently reported case is illuminating. Criminal proceedings were brought against a book publisher and its directors. I think there were nine directors in all. One of them was the infirm 87-year-old widow of the original founder of the publisher. The publisher had produced a book which contained reproductions of one or more copyright paintings. Difficult questions of fair dealing were raised as a defence. It might be thought that to bring such proceedings with complicated issues of copyright law before a magistrates' court did not make sense. However, I find it difficult to fault the logic of those acting for the private prosecutor. The Copyright Act stipulates that criminal procedures may be invoked against an alleged infringer and, in the case of an infringing company, its directors. Why not use these weapons? If the proceedings had been brought in civil courts, it is almost certain that the directors would have been struck out of the proceedings since there was no evidence, at least in relation to most of them, that they had any personal involvement in the production of the offensive book. But the criminal provisions relating to directors in the Act are, to say the least, relaxed. And if it is permissible to bring criminal proceedings, why not do so? The threat of a criminal conviction hanging over an alleged infringer's head and the heads of its directors is much more likely to make them sue for peace than the mere risk of losing in civil proceedings. Like the prospect of being hanged, it does concentrate the mind. The fact that these statutory provisions are being used to enforce purely private commercial rights appears to be irrelevant. Furthermore, there is a great incentive to proceed in this way. The costs of the prosecuting copyright owner are usually paid out of central funds, even if the prosecution fails. This little bit of budgetary largesse has escaped critical scrutiny so far. We have therefore reached the stage where taxpayers' money is being used to enforce private rights which many might think are more than adequately protected by civil remedies. I should also mention that it appears that in most cases it is not the poor and weak who are using these criminal provisions but the rich and well organised.
The issue of criminal prosecutions in copyright disputes came up again last week during a press conference in Washington, D.C. held by yet another group seeking the strengthen IP law, this time the "Coalition Against Counterfeiting and Piracy." Who could be for counterfeiting and piracy (assuming the terms are properly defined). The remarks that drew the most press were those of NBC/Universal General Counsel Rick Cotton, who is reported to have stated:
“Our law enforcement resources are seriously misaligned. If you add up all the various kinds of property crimes in this country, everything from theft, to fraud, to burglary, bank-robbing, all of it, it costs the country $16 billion a year. But intellectual property crime runs to hundreds of billions [of dollars] a year. We’re having intensive consultations with the leadership in Congress, and we’ll be consulting closely with the appropriate committee chairman to try to put the agenda into the appropriate legislative vehicles." The group is also said to support the creation of a new IP enforcement coordinator within the White House.
I am not opposed to all criminal copyright provisions. I drafted two while copyright counsel to the U.S. House of Representatives, the bootleg provision that Mr. Martignon will now perhaps be tried under, and a general revision of the criminal sections to eliminate differences among subject matter. But I cannot imagine that enforcement difficulties have anything to do with the lack of existing adequate criminal remedies. Very few acts of infringement warrant criminal prosecution, which should be limited to large-scale commercial enterprises. With Justice laddie, I think that taxpayers' money should not be used to enforce private rights which are more than adequately protected by civil remedies, and I doubt many taxpayers share the view that theft, fraud, and violent crime are, absolutely or relatively, petty.