A recent Court of Appeal case (R v Wayne Evans  EWCA Crim 139
) raised a number of questions regarding the proper level of appropriate sentence when dealing with offences of distribution of articles which infringe copyright contrary to section 107(1)(e) of the Copyright, Designs and Patent Act 1988.
The Appellant, Wayne Evans, illegally shared UK Top 40 chart hits and distributed other tracks including acapella music through the use of his own ‘torrent’ websites. Though Evans did not charge website users per download, he created a facility on accepting donations.
Investigators identified in excess of 500,000 files shared via illegal file-sharing websites including deejayportal.com, which Evans promoted using his personal social media profiles on Facebook, Twitter and LinkedIn.
Evans was charged with Distributing Material Infringing Copyright, contrary to section 107(1)(e) of the Copyright, Designs and Patent Act 1988. He was also charged with Possession of Articles for use in Fraud, contrary to section 6 of the Fraud Act 2006. He was sentenced to 12 months in prison.
During the appeal hearing it was submitted on his behalf that a total sentence of 12 months' imprisonment was excessive in the circumstances of the case, particularly given that Mr Evans was not motivated by financial gain and made comparatively little gain, which largely covered the costs of the operation.
The Court of Appeal acknowledged that whilst Mr Evans may not have been motivated by gain for himself, he caused ‘a real loss to the owners of the relevant copyrights and related performers’ and that such offending had a wider detrimental impact on the music industry, which was an important economic contributor to society.
The court accepted that whilst the offending in this case occurred in unusual circumstances, there was a need for deterrent sentencing in offences involving copyright infringement. Despite Mr Evans’ personal mitigation, his conduct was sustained and continued after receiving cease and desist notices. His activities persisted for a lengthy period of time and he used sophisticated equipment.
In dealing with the case the court acknowledged there were no definitive guidelines for sentencing cases of Copyright Infringement. It therefore provided guidance for identifying the considerations that are likely to be relevant for sentencing courts when dealing with such offences in future.
Guidance of the Court when Dealing with Similar Offences
‘(1) First, illegal downloading and distribution is very often difficult to investigate and detect. It can give rise to serious problems and losses (none the less real for not being readily quantifiable) to the music and entertainment industry. Deterrent sentencing in such a context is appropriate.
(2) Second, the length of time (and including also any continuation after service of cease and desist notices) of the unlawful activity will always be highly relevant.
(3) Third, the profit accruing to the defendant as a result of the unlawful activity will always be relevant.
(4) Fourth, and whether or not a significant profit is made by the defendant, the loss accruing to the copyright owners so far as it can accurately be calculated will also be relevant: as will be the wider impact upon the music industry even if difficult to quantify in precise financial terms: because wider impact there always is.
(5) Fifth, even though this particular type of offending is not the subject of any Definitive Guideline there may be cases where it will be helpful to a judge to have regard to the Definitive Guidelines on fraud, bribery and money laundering offences. In some cases, such as the present, that will positively be required because one or more of the counts on the indictment, as here, will be a count which comes within the ambit of the guideline itself. But even where that is not the position there may be some cases where a judge, at least if only as a check, may wish to refer to the Definitive Guideline to get a feel, as it were, for the appropriate sentence. However, there will be other cases where the Definitive Guideline may be of marginal, and perhaps no, assistance at all. That will be a matter for the assessment of the judge in the individual case. Where the Definitive Guideline is required to be taken into account because one of the counts on the indictment is within the ambit of the guideline, that of itself will no doubt lend assistance in deciding what the appropriate overall sentence will be.
(6) Sixth, personal mitigation, assistance to the authorities and bases and pleas of guilt are to be taken into account in the usual way.
(7) Seventh, 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, an immediate custodial sentence is likely to be appropriate in cases of illegal distribution of copyright infringing articles.’
To view the full judgment please click here.