In R v Evans ([2017] EWCA Crim 139), the English and Wales Court of Appeal affirmed a 12-month immediate prison sentence for an individual convicted of distributing infringing copies of musical works under the UK Copyright, Designs, Patents Act, 1988.

The defendant operated websites for DJs which provided links to a cappella tracks, or vocals-only tracks, isolated from commercial musical works. DJs sometimes use these tracks to play vocals from one musical work over new or different musical accompaniments. The website did not provide the musical works directly, but instead supplied links to torrent websites which permitted illegal downloading of the musical works. There was no evidence to suggest that the accused made any significant profits from his activities. He did, however, continue to operate the websites after receiving multiple cease and desist notices.

The accused appealed the sentence given at first instance, arguing that a 12-month prison sentence was excessive. The Court of Appeal disagreed, and affirmed the sentence. In addition, the decision provides a list of non-exhaustive factors for sentencing in cases involving the criminal distribution of infringing copyright articles:

  1. Deterrent sentencing is appropriate, because illegal downloading and distribution is difficult to investigate and detect, and gives rise to serious, non-quantifiable losses to the music and entertainment industry;
  2. The length of time of the unlawful activity (including continuation after the service of cease and desist notices) will always be highly relevant;
  3. The profit accruing to the defendant as a result of the unlawful activity will always be relevant;
  4. The loss accruing to copyright owners will be relevant, as well as the wider impact upon the music industry (whether or not a significant profit is made by the defendant);
  5. Regard to the Definitive Guidelines on fraud, bribery and money laundering offences may be helpful in some cases;
  6. Personal mitigation, assistance to the authorities and bases and pleas of guilt are to be taken into account; and
  7. An immediate custodial sentence is likely to be appropriate in cases of illegal distribution of copyright infringing articles, “unless the unlawful activity of this kind is very amateur, minor or short-lived, or in the absence of particularly compelling mitigation or other exceptional circumstances.”

Summary By: David Bowden

E-TIPS® ISSUE

17 03 22

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