UK file-swappers could face jail under new law

The Copyright and Related Rights Regulations 2003 was laid before Parliament on Friday after nearly a year's delay. It is expected to be passed in time to come into force by the end of October, according to legal experts.

The Copyright Directorate, a Patent Office department, had a deadline of 22 December last year to implement the European Copyright Directive of 2001 (known as EUCD), but delayed doing so several times under pressure from groups representing copyright holder interests as well as civil liberties and consumer rights organisations.

The EUCD is intended to aid copyright holders in cracking down on counterfeiting and piracy, but organisations such as UK think tank the Foundation for Information Policy Research (FIPR) argue that it is likely to tighten the grip of large companies on consumers, because of the way it is being implemented across the European Union.

In a recent analysis of the EUCD, FIPR found that most countries were failing to protect researchers, business competition and consumers in their implementations of the directive, while giving full force to measures that criminalise the circumvention of copyright controls.

Critics argue that such measures will be used by corporate interests to block competition for such products as printer cartridges and garage-door openers -- two cases that have already surfaced under the DMCA in the US.

FIPR director Ian Brown said that although the UK law compares favourably with the implementations in some other European states, it did not appear that consumer-rights groups' criticisms had been taken into account. "I don't think there has been much change since the first draft," he said.

The UK's music industry also lobbied against the law -- but on the grounds that it was too lenient, and would drive the music industry out of the country.

Brown said that an exemption had been built in allowing cryptographic researchers to circumvent copyright protections, but said the language of this provision was "perhaps less clear than it should be". One of the DMCA-like provisions of the EUCD is the criminalisation of circumventing copyright protections, in other words cracking anti-piracy technology on DVDs, CDs, printer cartridges and the like.

Other observers noted that the new UK law could be used to imprison file-swappers on peer-to-peer (P2P) networks such as Kazaa for up to two years.

One of the law's provisions states that "A person who infringes copyright in a work by communicating the work to the public... to such an extent as to affect prejudicially the owner of the copyright... commits an offence."

Struan Robertson, editor of the newsletter Out-Law, produced by UK law firm Masons, noted that this could be used to fine P2P users or send them to prison for up to two years. "By making a music file available for download for any other users of your chosen P2P network, you are communicating the work -- potentially at least -- to millions, i.e. to an extent that the music industry could say is prejudicing its rights," he said in a statement.

FIPR's Brown agreed the UK regulations allowed scope for abuse, but said that on this provision, the UK was bound by the provisions of the EUCD itself.

"It's the directive that's the problem," he said. "The groups who are concerned have to make sure their voices are heard next year when the European Commission reviews [the EUCD], and suggest changes."