Film theft in the UK - Future of Copyright

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has made profits from the infringement.
Although this provision seems to have been
intended to permit awards of exemplary
damages 42 there remains judicial uncertainty as
to the precise meaning of the section. 43
This does not appear to tally with requirements
in the EC Copyright Directive that national law
provide a ‘dissuasive’ remedy for copyright
infringement. One clear approach appears to
be to amend the Copyright Designs and Patents
Act 1998, along the lines of section 128 of the
Irish Copyright and Related Rights Act 2000, to
make it clear that exemplary damages should
be available in claims for copyright
infringement. Commonwealth territories such
as Canada, Australia and New Zealand also
provide for similar provisions.
The AACP has lobbied the Department for
Constitutional Affairs about the issue of
exemplary damages as a piracy deterrent, but
with little result. No convincing case has yet
been made why the government should not
extend the legal concept of ‘exemplary
damages’ to cases of copyright infringement.
Exemplary damages are paid as a punitive
measure rather than compensating for actual
loss in cases where, simply put, there has been
some form of malicious intent behind the
actions. Given that much organised piracy is
carried out with a clear intent to reap a reward
from another’s loss, the extension of the
principle would appear logical and persuasive.
Such a move would act as a disincentive by
considerably increasing the financial risk to
organised pirates.
In addition, or as an alternative, the CDPA
could be amended to provide for preestablished
or statutory damages, so that where
it is difficult for a rights owner to prove the
scale or extent of its losses (which also includes
disclosing often confidential information), the
judge is able to award an appropriate amount
within a set range. Such damages are available
in other countries such as the US, Canada and
Israel, and constitute an effective remedy in an
area where it is often impossible to assess the
extent of infringing activity. The criminal nature
of piracy usually means that records showing
the extent of pirate sales do not exist, or any
that do exist are unreliable.
Whilst camcording a film in a movie theatre is a
clear civil infringement, there is no clear criminal
offence. Section 107 of the CDPA states that an
offence is committed only if a copy is made “for
sale or hire” and this may not be the case. Other
possibly relevant offences must be done “in the
course of business”. It is arguable whether a
person who has camcorded a film and then
passes it to another person has distributed in
the sense required by s.107(e), and in any event
this will not have occurred if a person is caught
whilst still camcording.
Proving criminal intent (beyond reasonable
doubt) is extremely difficult. Even if it is
implausible that someone would be
camcording for the fun of it, if they claim they
are, how can it be proved otherwise? That is
why it needs to be illegal per se, or at least
there needs to be the presumption that it is
being done for gain, so that the onus is on
someone to prove otherwise.
Specific camcording legislation has been and is
being introduced in a number of US states and
there is a clear need for similar legislation in the UK.
As a result of lobbying efforts, the Licensing Act
2003 – under which UK cinemas are licensed –
does contain several provisions relating to
copyright protection. The net result of these is
that licensees stand to lose their licences – and
potentially their livelihood – if they fail to observe
copyright arrangements or knowingly keep any
goods on licensed premises that have been
imported without duty or unlawfully imported.
International harmonisation:
the WIPO Treaties and TRIPS
Due to the global nature of both the Internet
and piracy, it is essential to harmonise