S107a bro AW
20/6/07
1:22 pm
Page 1
A Practical Guide
to
Copyright Enforcement
for
Trading Standards Professionals
Summary of s107A and its application
Case studies
Resources available
S107a bro AW
20/6/07
1:22 pm
Page 2
Trading standards
professionals could be
thwarted in their ability
to prosecute an
individual who was
clearly in breach of
copyright legislation.
The law had to change to
allow trading standards
to keep abreast of the
illicit traders.
2
S107a bro AW
20/6/07
1:22 pm
Page 3
CONTENTS
Foreword
4
– By UKIPO
Introduction
5
– What is s107A
– Why Trading Standards Need the Powers
to Enforce Copyright Law
Practical Enforcement
11
– Copyright Enforcement and s107A
– How the New Incentivisation Scheme and POCA Help Fund
Enforcement Work
– Hitting Pirates Where it Hurts
– Working Together to Maximise Resources
– Joint Initiatives with Police
– Education and Advice
– Tackling Car Boot Fairs
– Raising Awareness
The Problem of Copyright Theft
23
– Headline Figures
– Criminal Gain
– Case Studies
Legal Summary
–
–
–
–
30
Copyright Offences
Trade Mark Offences
Defences
Suitable Lines of Questioning
Resources and Support
37
CONTENTS
3
S107a bro AW
20/6/07
1:22 pm
Page 4
FOREWORD
Counterfeiting and piracy crime is big business. The criminals involved
in it are often well financed and well organised. In order to better fight
this threat, the Government launched the National IP Crime Strategy.
Pedlars of fake goods do serious damage, to both the businesses
affected and to local communities. Selling this shoddy merchandise not
only helps criminals to fund their lifestyles, but also robs communities of
jobs and wealth that legitimate businesses create. In addition, by buying
this stuff, consumers could be getting a product that is unsafe and often
of poor quality.
Intellectual property crime is a key threat to the consumer and to the UK
economy. The UK's creative industries rely on copyright protection to
underpin their businesses, and the new powers we've brought in should
help to protect both our creative businesses and the economy.
Criminals should not think that IP crime is 'soft' crime, or that they won't
be caught. The Government is cracking down. IP criminals can end up
in prison for up to 10 years, and all of their assets may be seized.
Trading standards authorities are very much on the frontline, with other
agencies, in protecting consumers and local communities against fake
goods. The Rogers Review identified IP crime as a key local
enforcement priority within their unfair trading work. The new powers
that s107 provides to tackle copyright theft, should help to ensure that
trading standards have a fuller armoury to tackle this illegal and
destructive trade. This guide highlights some of the actions that trading
standards officers on the ground can and have taken to tackle this
problem.
Malcolm Wicks,
Minister of State for Science and Innovation.
4
S107a bro AW
20/6/07
1:22 pm
Page 5
INTRODUCTION
This brochure provides an overview of the issue of copyright
infringement in the UK, including case studies demonstrating how
piracy is used to support criminal lifestyles and its links to other forms
of criminality. It also highlights the practical, and often innovative,
approaches that trading standards departments across the country are
implementing to combat it and the benefits introduced to trading
standards professionals through the implementation of section 107A. It
offers examples of working practices that trading standards can
implement to improve efficiencies in enforcing copyright legislation.
A useful summary of the Copyright, Designs and Patents Act 1988
(CDPA) and the Trade Marks Act 1994 (TMA) is included. This was
originally prepared by FACT as a guide for police officers1 and is now
also available as a pocket-sized supplement to this brochure for use by
trading standards professionals in the field. A more detailed summary of
the law is provided in a separate document by UKIPO2.
The case studies in this brochure are snap shots representative of a
much wider picture of criminal activity and correspondingly of trading
standards enforcement measures nationally. What has become clear in
talking to trading standards officers around the UK in the preparation of
this brochure, is how active they are in tackling this problem and how
the addition of the new powers of enforcement under s107A and
s198A, combined with existing measures, such as Proceeds of Crime
actions, and the availability of resources through the Government’s
incentivisation scheme, will further strengthen their activities in this field.
Bryan Lewin, Head of Trading Standards, Northamptonshire County
Council and the TSI Lead Officer for Intellectual Property, summarised
the new era, 'Criminals involved in the manufacture or distribution of
copyright DVDs, CDs, computer games, business software, books and
audio books etc must realise that not only will they have their stock and
equipment seized and be prosecuted but also that the courts will be
imposing custodial sentences with confiscation orders to take away any
income or assets that cannot be lawfully accounted for.'
1. Federation Against Copyright Theft (FACT) Guide to Film Piracy Offences
England & Wales. September 2006
2. Copyright: Counterfeiting and Piracy a Guide for Trading Standards. UKIPO.
February 2007
INTRODUCTION
5
S107a bro AW
20/6/07
1:22 pm
Page 6
What is s107A
On April 6 2007, trading standards officers in the UK added another
valuable tool to their existing armoury for use in the fight against
intellectual property theft. On that date, the long awaited amendments
to the Copyright, Designs and Patents Act 1988 were enacted, giving
trading standards professionals the responsibility and power to enforce
criminal offences relating to copyright as set out in sections 107 and
198 of the CDPA.
The new provisions bring trading standards’ powers with regard to
copyright offences in line with those already existing for trade mark
offences. Trading standards officers now have the power to make test
purchases, enter premises and seize goods and documents. Anyone
involved in copyright theft – most commonly, in music recordings, films,
TV programmes, books, computer games and business software, as
well as the other works covered by the Act – now faces the threat of a
criminal prosecution by a local authority trading standards department
for copyright infringement (as well as any other infringement) with the
possibility of a maximum ten year prison sentence or unlimited fine.
Trading standards officers
now have the power to
make test purchases, enter
premises and seize goods
and documents
Government Incentive
The Government has earmarked £5 million for local authorities to use in
the deployment of trading standards professionals in copyright
enforcement. This money has been distributed in England, Scotland and
Northern Ireland. The funding for Welsh authorities is not yet decided.
6
S107a bro AW
20/6/07
1:22 pm
Page 7
Why Trading Standards Need
the Power to Enforce Copyright Law
Prior to the introduction of s107A, trading standards used the Trade
Marks Act very effectively as the legislation to prosecute counterfeiters.
However, in recent years, there have been significant changes in the
trade in illicit copies of copyright materials. Increasingly, these products
are traded without any visible trade marks on the packaging: on pirate
DVDs the trade marks shown on screen are often removed at the start
of the film; illicit music CDs are often MP3 packages comprising several
albums by various artists, with just a generic title such as ‘Hard Rock’;
on the Internet, pirate copies of computer and video games, and films,
are available to download with no obvious infringement of a trade mark;
and many books and audio books have no registered trade mark
protection to begin with. As a result, trading standards professionals
could be thwarted in their ability to prosecute an individual who was
clearly in breach of copyright legislation. The law had to change to allow
trading standards to keep abreast of the illicit traders. The addition of
these new powers for trading standards means they have a full range of
measures, matching the powers that police have had for many years.
The addition of
these new powers
for trading
standards means
they have a full
range of measures,
matching the
powers that police
have had for many
years.
An unlawful MP3 package,
comprising several albums by
various artists.
INTRODUCTION
7
S107a bro AW
20/6/07
1:22 pm
Page 8
'Mixing-Up' Copyright Infringement
A particular problem in copyright theft involves ‘mix-tape’ CDs and
‘mash-up’ vinyl products. The former are primarily unauthorised remixes
of songs recorded by artists operating within the hip hop, RnB and
dance music genres. The latter are usually 12" vinyl recordings featuring
a mixture of two sound recordings blended together and re-recorded
without authorisation. The packaging usually bears no reference to
trade marks or record company details (other than bogus ones).
Historically, trading standards officials have had to use great ingenuity
when using their powers to seize this type of product.
A particular Essex market had, until recently, a major problem with
traders selling mix-tape CDs. The sellers considered that as the CDs
consisted of songs which were not in the original format (i.e. they had
been altered by remixing them) there was no infringement. They failed
to realise that because a substantial amount of the original recording still
existed in the new version, an infringement occurred when that part of
the track was reproduced without authorisation. Some traders held a
genuine belief that because no action had been taken previously by
trading standards, they could legitimately sell them. Police assistance
had also proved difficult to obtain.
A couple of weeks after the April 6th implementation date, two stalls at
the market were successfully raided, without any police presence,
netting nearly 4,000 mix-tape CDs. The new powers have effectively put
an end to trading standards professionals' frustrations at not being able
to deal with this type of infringement.
Company Investigations
In a recent case, a company called Logon2, a member of The
Federation Against Software Theft (The Federation), found that its own
software product had been copied by former employees and sent out
of the building.
The police executed a search warrant at the premises where the former
employees were working.
John Lovelock, director general of The Federation, takes up the tale,
‘The police did respond to the complaint made by The Federation, but
8
S107a bro AW
20/6/07
1:22 pm
Page 9
only after persistent and lengthy lobbying at a senior level. It took time
to develop a relationship as police contact can be rare in software theft
matters. Action may have been quicker with trading standards, as The
Federation works to maintain its long established ties with the
profession. Without a legal right for The Federation to represent its
member, we could not pursue legal action on behalf of the software
community. The member itself was not in a position to take action. With
the introduction of section 107A, the action could have been
immediate.'
He added, 'We could have worked to assist trading standards and
support the service, providing expertise in how to progress the
investigation which may have led to a determination to see it through.'
The publishing industry has, in recent years, become a relatively new victim
of counterfeiting in the UK. One of the main reasons for this is that books
and audio books are typically defended only by copyright, making action
against criminals more difficult. However, even where a trade mark is
registered, action for trade mark infringement may be problematic. The
picture above shows two counterfeit foreign language courses. The fake
on the left copies the packaging of the genuine product, clearly infringing
the trade marks ‘Michel Thomas’ and ‘Hodder & Stoughton’. The fake on
the right is, in fact, a copy of a sister product, Hodder & Stoughton's
Michel Thomas German Course. In this case, however, no trade mark
infringement is apparent, so a power to act for copyright infringement is
essential in order to begin an investigation.
INTRODUCTION
9
S107a bro AW
20/6/07
1:22 pm
Page 10
“The introduction of new
statutory duties means
that the focus of
investigations is widened
beyond markets and now
also takes in computer
fairs, the Internet and
individuals selling in their
places of work.”
10
S107a bro AW
20/6/07
1:22 pm
Page 11
PRACTICAL ENFORCEMENT
Around the UK, trading standards departments implement a range of
initiatives to enforce copyright and trade mark law and to make
consumers more aware of the problems associated with IP theft. The
following case studies highlight some of these approaches.
Copyright Enforcement and s107A
Who Owns Copyright
For many years, Cardiff Trading Standards has provided advice and
assistance to visiting music artists playing at the Millennium Stadium
and Cardiff International Arena on protecting their products under trade
mark and copyright legislation. Handley Brustad, Senior Trading
Standards Officer at Cardiff County Council, explained some of the
difficulties encountered. 'Prior to 2007 and the new powers to enforce
copyright, any infringements had to be dealt with under the Trade
Descriptions Act for us to be able to seize the infringing goods. The
situation was made more difficult when the bootleggers designed a logo
for the band on tour and brought with them to Cardiff the designer who
could prove that he had designed the logo on the t-shirts and therefore
held the copyright to it. The band’s copyright records were unavailable
at short notice and therefore we were unable to argue against the
bootleggers.'
As the experience in Cardiff demonstrates, proving copyright is not
always easy and records of copyright are not always readily available. It
is not as easy as examining the Trade Mark Register held by the UK
Intellectual Property Office. For copyright, the details held by individual
copyright holders must be relied on. Some of the associations that
represent copyright owners can assist trading standards by providing
this information.
Flexibility is the Key
In Liverpool, Allan Auty, Trading Standards Manager, explained that the
city’s approach has always been to use whichever piece of legislation is
PRACTICAL ENFORCEMENT
11
S107a bro AW
20/6/07
1:22 pm
Page 12
most appropriate in cases of trade mark or copyright infringement. The
authority has used the Trade Marks Act 1994 to prosecute in cases of
music, film or software piracy but believes that it is an artificial approach
and has generally used the Copyright, Designs and Patents Act 1988
(as a ‘common informer’ piece of legislation) in these cases. The
philosophy has always been to seize under the TMA and then consider
whether to prosecute under this or the CDPA. Where warrants have
been required in the past, Liverpool Trading Standards has worked with
police who have got CDPA warrants - and there have been a number of
very successful results through these joint arrangements.
He added, ‘The introduction of new statutory duties means that the
focus of investigations is widened beyond markets and now also takes
in computer fairs, the Internet and individuals selling in their places of
work.’
The offence in s107(2A) detailed in this brochure's Legal Summary
(page 31) is now available as a tool to trading standards officers to
prosecute uploading file sharers of digital product, such as film and
music, whether or not they do so in the course of a business.
Using CDPA when No Trade Marks are Visible
Bill Bilon, Brent and Harrow, Director of Trading Standards offered a
recent example of how the enactment of s107A of the CDPA will directly
assist in cases of copyright infringement. The department received a
complaint that a trader was producing DVD copies of Asian language
films at his shop premises in the Harrow area. Officers visited the
premises in August 2006 and found a fully functioning, illegal DVD
factory. Before s107A came into force, there had been a difficulty in
taking the case forward under traditional IP legislation such as the TMA
as the DVDs were white label copies with the title written by hand. The
pirate had also taken the trouble to remove the lead-in to the film which
bore the registered trade marks of the producer and name of the UK
rights holder.
The only legislation that could practically be used in this situation was
s107 CDPA. The factory was raided and the film pirate was prosecuted
under CDPA. He received a fine of £4,000 and had to pay costs of
£1,100. Without these provisions in the CDPA, no action would have
been possible under these circumstances.
12
S107a bro AW
20/6/07
1:22 pm
Page 13
How the New Incentivisation Scheme and POCA
Help Fund Enforcement Work
The implementation of s107A is backed by £5 million funding for local
authorities (in England, Scotland and Northern Ireland) for copyright
enforcement activities. The funding for Welsh authorities is not yet
decided. The amount of funding provided to each authority is directly
related to the size of the authority. For large authorities, it would cover
the costs of one or more trading standards professionals dedicated to
working in IP enforcement. In smaller authorities, the funding will only
cover part of the costs of a member of staff. Many departments are,
therefore, looking at ways in which this funding can be maximised.
In Warrington, Chief Trading Standards Officer, Peter Astley, believes
that funds from the Government's incentivisation scheme should be
seen as a valuable means of kick-starting copyright enforcement
activity. Where the funds are insufficient to cover a full-time member of
staff and, therefore, where it may be difficult to sustain the impetus of
copyright enforcement, Peter believes that the answer is in pooling
resources. He explained:
‘As copyright crime is frequently a 'cross border' activity, in which one
illegal trader may be operating within several local authorities, it makes
sense for trading standards departments to pool resources for greater
operating efficiencies. One solution could be for a number of authorities
to invest in a dedicated, cross border IP crime specialist. The illegal
traders make no distinction between local authority boundaries and,
therefore, enforcement officials should adopt the same approach to
beat them at their own game.’
He added:
‘Whilst the Government's incentive funding can start initiatives, the key
to maintaining copyright crime enforcement is through Proceeds of
Crime3 actions and assets recovery. The new powers for trading
standards to enforce copyright legislation means that a percentage of
any funds recovered through POCA are directed to trading standards
rather than to police.’
Peter also believes that there is a wider benefit in maximising the
3. The asset recovery provisions of The Proceeds of Crime Act 2002
PRACTICAL ENFORCEMENT
13
S107a bro AW
20/6/07
1:22 pm
Page 14
financial resources available: ‘IP crime has been marked as a priority by
the Government. By actively embracing the new powers of enforcement
of copyright legislation, trading standards departments can
demonstrate, not just to central government but also to local
government, that funding in this area is justified and should be
maintained.’
Proceeds of Crime Incentivisation Scheme
Trading standards departments in England and Wales are part of the
POCA incentivisation scheme and can, along with other bodies
involved in the investigation (police etc), recoup some of the costs of
a prosecution by being awarded a percentage of the eventual
confiscation order.
For example, using a £90,000 POCA confiscation order:
• 50% goes to the HM Treasury with the other 50% being split into
thirds;
• one third goes to the agency responsible for the collection of the
monies (normally the Magistrates Courts);
• one third goes to the Financial Investigator (the relevant local
authority);
• one third goes to the prosecuting authority (which can be the
same as the investigator).
This allows trading standards in England and Wales to claim up to
two thirds of the second 50%.
Local authority trading standards services in Scotland are unable to
claim any proceeds from a POCA confiscation order (see page 16).
The Alliance Against IP Theft is lobbying to change this situation as
Susie Winter, Director General, explained, ‘In Scotland, although
there is a duty on local authorities to enforce the legislation, there is
no additional incentive for enforcement agencies to take up IP crime
cases, even given its links to Chinese organised crime, human
trafficking and other criminal and anti-social activity. The Alliance
feels that allowing Scottish local authority trading standards to
receive proceeds of crime would greatly encourage authorities to do
more work in this area, and perhaps even join up their efforts to work
together across boundaries, resulting in a much more effective and
sustainable enforcement effort.’
14
S107a bro AW
20/6/07
1:22 pm
Page 15
Hitting Pirates Where it Hurts
Proceeds of Crime actions are being used increasingly by trading
standards as a powerful deterrent to copyright infringement.
Following a successful prosecution against a film and music pirate, in
which the defendant received a four month custodial sentence, Trading
Standards Services from Merthyr Tydfil County Borough Council made
an application for a Proceeds of Crime order against the defendant. He
was subsequently ordered to pay back assets of £14,000, which was
the equity in his home.
Steve Peters, Head of Trading Standards for MTCBC commented that
the defendant appeared to take the custodial sentence as an
occupational hazard. However, when action was taken under the
Proceeds of Crime Act, the defendant’s attitude soon changed as he
was looking at losing the assets he had gained from his activities. Steve
Peters continued, ‘We felt that, even with the small amount of assets
available, action needed to be taken to act as a deterrent to others by
showing that the Proceeds of Crime Act is not just aimed at multimillionaire criminals but also those operating at a local level.’
He added, ‘There has been a lot of publicity in relation to the
Incentivisation Scheme from the Home Office and the potential revenue
to authorities but the message sent by this case acts as a clear
deterrent to others considering IP crime. We view action under the
Proceeds of Crime Act as an essential enforcement tool.’
Bill Bilon, Director of Trading Standards at Brent and Harrow, agrees
that Proceeds of Crime legislation should be used as a means of
reducing crime by taking away the assets of criminals as such cases
send a clear message that crime does not pay. He believes that this
type of ‘income’ helps by directing the monies received from the assets
of criminals to investigate and prosecute further cases. ‘Without these
additional resources,’ he said, ‘trading standards will not be able to
carry out complex and time consuming investigations, which lead to
further applications for the seizure of assets under the Proceeds of
Crime Act. A vicious circle indeed.’
Steve Lynch, Strategic Manager, Trading Standards Operations, Essex
County Council, explained that a POCA officer has been specially
PRACTICAL ENFORCEMENT
15
S107a bro AW
20/6/07
1:22 pm
Page 16
trained so that the trading standards department can maximise the
effect of POCA in Essex, particularly on piracy and counterfeiting. He
added, ‘An important element will be to maximise publicity as well as
adding a POCA warning to caution and warning letters.’
Allan Auty confirmed that Liverpool has always taken the view that
wherever you have someone dealing in pirated material, and there is
evidence that the dealer has assets, then the Proceeds of Crime Act
should be used. In one case, a dealer (Susan Roach) had £250,000
worth of assets seized, 1/6th of which will go to the local authority.
In Scotland, the situation regarding Proceeds of Crime is different to that
in the rest of the UK: any assets recovered are retained by the Scottish
Executive and then may be re-directed to deliver initiatives known to
reduce crime; improve people's quality of life; and visibly repair the harm
caused to communities through the impact of serious violent crime.
David Thomson, Trading Standards Manager, South Ayrshire and
Chair of the Society of Chief Officers of Trading Standards in Scotland
(SCOTSS), explained, ‘Whilst this re-direction of assets is clearly
beneficial to the community as a whole, it does not directly assist the
local authority in covering the costs of a prosecution for IP infringement.
The costs of mounting an [anti-counterfeiting] operation can be a
serious concern for a local authority. An investigation of a Sunday
market, for example, may require protracted surveillance and several
officers, with related over-time costs. This is before any seizures and
prosecutions are mounted.
‘Since costs are a concern,’ he added, ‘we believe in maximising our
impact and so it is important to look for other ways of achieving the
objective. We found that a partial solution was on our doorstep. By
joining forces with the authorities in North and East Ayrshire, we have
been able to pool our resources both in mounting investigations and
consumer awareness campaigns.’
“By joining up our activities it
has become easier to share
resources, increase media
coverage and reduce costs”
16
S107a bro AW
20/6/07
1:22 pm
Page 17
Working Together to Maximise Resources
Pooling resources has already been implemented by three authorities in
Scotland under the banner of ‘Fake Free Ayrshire’. David Thomson
(South Ayrshire) explained: ‘Because North, East and South Ayrshire are
neighbouring authorities, we share some of the same criminals involved
in these activities as they tended to target sales in all our three authority
areas. By joining up our activities, it has become easier to share
resources, increase media coverage and reduce costs in such things as
publicity material and equipment.’
Working in partnership with the BPI, FACT, ELSPA, Odeon Cinemas and
Microsoft, the three authorities have pulled together a package of
targeted activities backed up with advertising to attack the problem in a
co-ordinated fashion. ‘Fake Free Ayrshire’ consists of a series of
initiatives aimed at tackling the problem in markets, on the Internet, in
licensed premises, in the workplace and in so called ‘cottage industries’
operating from home addresses.
David Thomson added that the initiative has been very successful in
stimulating the flow of information, from the public and businesses, on
activities in all these areas, leading to a number of search warrants,
seizures and reports to the Procurator Fiscal.
The Benefits of Intelligence Led Operations
The increasing use of intelligence to conduct operations has been highly
beneficial to FACT and the organisation coordinates all its operations
through its Intel Unit which also liaises on a regular basis with police and
trading standards intelligence units. Problem profiles on specific towns,
councils or regions can also be generated by the Unit.
Joint Initiatives with Police
In Harrow, police and the trading standards service have a good
working relationship when it comes to dealing with the problems of
counterfeit DVDs, which are predominantly sold by Chinese sellers
throughout the Borough.
PRACTICAL ENFORCEMENT
17
S107a bro AW
20/6/07
1:22 pm
Page 18
Police officers regularly arrest the traders and hand over the evidence to
trading standards who progress the investigation. Trading standards
attend on the ‘bail to return’ date and interview the seller. Trading
standards then charge the offender and bring them before the courts.
This method frees up police time and encourages police to make
arrests in the knowledge they will receive support from trading
standards.
Bill Bilon explained, ‘Charging is a much better method of dealing with
these offenders as they are brought before the courts the very next day.
This avoids the problem of having to serve summonses at a later date
because these offenders are usually of no fixed abodes. Even if you do
get that far, these offenders rarely answer their summonses and
disappear without trace.’
This process is supplemented by regular, high profile police and trading
standards operations where offenders are arrested on a large scale by
police and charged by trading standards the same day. Offenders are
then kept in cells overnight and produced at court the following day, fast
tracking the justice system to allow, in most cases, for offenders to be
sentenced by the courts within 24 hours of their arrest.
An alternative to attending police stations and charging has been
developed by Essex Trading Standards. The department provides a
toolkit for police officers to use in dealing with Chinese DVD sellers:
police arrest, seize and interview and a trading standards professional
gives an expert witness statement that the DVDs are illegal copies. The
CPS prosecutes and the Chinese DVD sellers invariably plead guilty and
receive custodial sentences as they have no verifiable fixed addresses.
Education and Advice
Copyright enforcement is not all about prosecution but also education
and advice to businesses as this can lessen the burden on stretched
local authority services.
In Cardiff, a local sixth form college ran a competition to design a new
badge for its uniform. The winning design was chosen and a local
embroidery factory given a licence to produce the uniforms with special
18
S107a bro AW
20/6/07
1:22 pm
Page 19
emphasis on colour matching. It was subsequently discovered that
another embroidery company was producing uniforms, bearing a copy
of the logo, at a cut-price.
The college approached Cardiff Trading Standards for help. As this was
prior to 2007, they had no powers to examine or seize under the
copyright legislation. At this point, on examination of the college badge,
they noticed a distinct resemblance to the interlocking ‘C’ design of the
Chanel trade mark.
On advice from Cardiff Trading Standards, the college obtained
permission from Chanel to continue using its relatively new badge. The
unauthorised embroidery company was advised that it was infringing
the copyright of the college and also the trade mark of Chanel. It
immediately stopped all further production and removed the small
finished stock from sale – a fair result to all parties.
Tackling Car Boot Fairs
The trade in counterfeit goods at car boot sales has become a growing
problem, exacerbated by the increased availability of illicit copies of
goods which do not bear any trade mark. For many trading standards
departments, tackling the problem, through large scale operations, can
be extremely labour intensive.
Essex Trading Standards has developed an alternative method of
dealing with the problem through the introduction of a code of practice.
The idea stemmed from a similar initiative in Redcar & Cleveland in
which the authority introduced a code of practice for the organisers of
markets and boot fairs. When one of the most prominent organisers,
who had signed up to the code, was found openly allowing the sale of
counterfeit goods at his venue, despite warnings, he was eventually
prosecuted for aiding and abetting the sale of goods bearing a false
trade mark. Today, this approach would also be extended to include
copyright infringing goods.
Under the Essex code of practice, market and car boot sale organisers
are asked to agree to nine key points.
PRACTICAL ENFORCEMENT
19
S107a bro AW
20/6/07
1:22 pm
Page 20
1. Provide details of events held to Essex Trading Standards and a
contact for liaison in respect of any matters relevant to the code or
other legal issues relating to the supply of goods at the venue.
2. Endeavour to prevent the supply of illegal goods which include:
stolen goods, counterfeit goods, unsafe goods, tobacco, alcohol,
fireworks, offensive weapons and items of a pornographic nature.
3. Actively manage the venue and endeavour to exclude suspected
sellers of illegal goods, patrol and monitor the venue and remove
sellers found to be selling illegal goods. Where sellers refuse to leave,
then contact the relevant authorities.
4. Report any suspected sellers of illegal goods to Essex Trading
Standards together with details of their identity and vehicles
wherever possible.
5. Prominently display notices supplied by Essex Trading Standards at
entrances and exits and other agreed points.
6. Ensure all staff employed at the venue are aware of this code of
practice and its requirements.
7. Provide a copy of the code to customers on request.
8. Display the code of practice on any promotional website.
9. Provide a ‘Guide to Sellers’ to all sellers at the venue.
The initiative is monitored by trading standards officers, including covert
surveillance and overt high-profile attendance at sites, offering advice to
organisers, sellers and consumers as required. The support of
organisers is gained to seize property and effect removal of sellers
suspected of selling illegal goods
Information on the identities of illegal traders is collated from trading
standards staff and organisers. Intelligence is also disseminated to
organisers. Essex Trading Standards also recognises that publicity of
the code is essential to ensure that members of the public know what
to expect from the markets and sales they visit.
The trading standards team provides advice and support to those
organisers who are experiencing problems at their venues. The team
also carries out enforcement visits where corrective action is not taken
by organisers, issues warnings to those organisers seen to be failing to
meet their obligations under the code of practice and, as a last resort,
takes enforcement action against the organisers themselves and
informs local planning authorities.
20
S107a bro AW
20/6/07
1:22 pm
Page 21
The first review of the code of practice took place in October 2006.
Steve Lynch reported that the review showed a clear improvement in
certain areas but other troublesome hotspots remained. A further
strategy is now being developed to focus on these hotspots so that
resources are deployed where they are most needed.
Raising Awareness
Reducing consumer demand for copyright infringing goods is an
important element in the fight against piracy. In Hackney, a joint initiative
between FACT, the Metropolitan Police, Hackney Council and Tesco
was implemented in early 2007 to target very directly the problem of fly
pitchers and street sellers of counterfeit DVDs in Hackney town centre.
Large posters, highlighting a number of people who were the subject of
ASBOs for selling pirate DVDs in Hackney and also warning of the
penalties for this offence, were displayed on lamp posts in the car park
of Tesco and in some of the surrounding streets. Leaflets and smaller
posters were also distributed to local businesses.
Reducing Demand for 'Knock-Off' DVDs
Since 2004, the Industry Trust for Intellectual Property Awareness has
tackled the growing issue of film and TV copyright theft in the UK
through consumer education and awareness campaigns and the
provision of training and information for those working to protect and
enforce copyright. During summer 2007, it launched a major, new
initiative, designed to reduce demand for pirate product and engender
value and appreciation for copyright.
The Industry Trust for IP
Awareness' new
consumer awareness
campaign launched in
summer 2007. More
details on page 39 and at
www.knockoffornot.com
PRACTICAL ENFORCEMENT
21
S107a bro AW
20/6/07
1:22 pm
Page 22
Headline Figures
Film and TV
Independent research carried out for the British Video Association4 (BVA)
estimates that in 2006, the gain by criminals involved in the sale of counterfeit
film and TV products was £169 million, corresponding to £460 million in lost
revenues to the UK film and TV sector.
According to FACT, an average pirate 'street seller' could be making several
thousand pounds per week. A significant proportion of this money may be
channelled up to feed organised crime. At the other end of the scale, a pirate
‘factory’ can produce a criminal gain of over £5 million a month (based on
500 burners operating 24/7).
Music
Research carried out for the British Phonographic Industry5 (BPI) estimated
that the criminal gain through music piracy was approximately £165
million.
Computer and Video Games
The Entertainment and Leisure Software Publishers Association6 (ELSPA)
estimates that UK sales of its members’ counterfeited software are worth
£351 million per annum to serious organised criminals.
Software
Software is fundamental to the production of any digital content yet it
sometimes gets forgotten about in the glitz of film, music and computer and
video games. FAST is the only organisation which proactively goes out to
businesses to educate them about the theft of software, and other IP, in
businesses.
According to extensive studies by the IDC on behalf of the BSA 27% of PC
software in use in UK businesses, private and public sector, is illegal and
amounts to almost £1 billion/annum lost to the software industry.
Books
In 2006, The Publishers Association (PA)7 saw a significant increase in the
volume of counterfeit works being offered for sale in the UK particularly in
audio and scientific, technical or medical books. Visible profit estimates for
the more successful operators range from £6,000 to £20,000 per month
(each). Given the high value of the product, loss to industry is high - in one
extreme case, a trader was caught selling discs containing over £2,000
worth of counterfeit product. Overall, the PA estimates the size of the criminal
market in the UK to be over £30 million per annum, corresponding to over
£150 million retail value.
22
S107a bro AW
20/6/07
1:22 pm
Page 23
THE PROBLEM OF COPYRIGHT THEFT
Criminal Gain
Alliance Against IP Theft8 members provide figures on the business
losses and cost to the UK economy of IP theft, as well as estimates of
profits gained by criminals involved in this type of crime, based on
consumer research, seizures and average street prices. These figures
demonstrate that copyright infringement is big business and can
provide illegal traders with significant incomes to support criminal
lifestyles.
In just one recent case, involving the distribution and sale of counterfeit
DVDs to markets and car boot fairs across the North West of England9,
the operation was found to have taken £40,000 in six months.
The Federation Against Copyright Theft (FACT), working with law
enforcement agencies, recorded 227 positive court results in 2006 in
cases of DVD piracy. Of these, 116 were for custodial sentences
(including suspended sentences) and 28% received sentences of one
year or more, reflecting the seriousness with which the judiciary view
this criminal activity.
4. IPSOS Piracy Study, Wave 4. April 2007
5. IPSOS
6. ELSPA
7. The Publishers Association Annual Report 2006
8. www.allianceagainstiptheft.co.uk
9. Operation Zealot investigation by FACT, BPI, ELSPA and DWP.
Liverpool Crown Court 22 May 2007
THE PROBLEM OF COPYRIGHT THEFT
23
S107a bro AW
20/6/07
1:22 pm
Page 24
Case Studies
Books and Audio Books - a Hidden Criminal Market
In 2005, the Publishers Association identified an unreported market in
illegal copies of books (typically electronic copies sold on optical disc)
and audio books. 2006 brought a shift from pirate copies to faithfully
reproduced counterfeits, designed to mislead the consumer. Even by
the standards of IP crime this was a very low risk market for criminals,
because the publishing industry has traditionally relied on copyright law
to protect its product, with trade marks being relatively uncommon.
Prior to the implementation of s107A, therefore, enforcement action
was mainly limited to expensive civil or private criminal cases and
consequently rare. Meanwhile, the high value of the product (the latest
Harry Potter audio book retails at £75 and the current edition of Gray's
Anatomy at £99 to £159, depending on format) meant that criminals
could make high profits from relatively few sales.
With the implementation of s107A, such cases have become
prosecutable and the PA, having established a Home-Authority
relationship with London Borough of Camden Trading Standards, is
actively pursuing prosecution of the worst offenders, focusing on UK
based, for-profit counterfeiters. Book counterfeiters rarely operate at
markets or car boot sales, with most transactions being carried out over
the Internet. The typical perpetrator is a home owner, manufacturing
products to order and using multiple on-line aliases.
£569 retail value
of counterfeit
product, sold for
£31
24
S107a bro AW
20/6/07
1:22 pm
Page 25
Property Portfolio Built on Piracy
In August 2006, more than £878,000 was confiscated from three
people from the Merseyside area following joint operations, codenamed
‘Operation Zouk’, between Police, the Department for Work and
Pensions, Liverpool Trading Standards Department, Sefton Trading
Standards Department, the Mechanical Copyright Protection Society
and the North West Regional Asset Recovery Team (NWRART).
All three had been involved in the manufacturing and sale of counterfeit
DVDs, CDs and computer games.
Market trader, Susan Roach, was sentenced to 12 months’
imprisonment. NWRART found that, apart from social security benefits
and a small amount earned from working in a public house, Roach had
no other legitimate sources of income. Despite this, it was found that,
in addition to owning her home, she also owned another house in
Walton, had a third share of a public house in Walton, had purchased
another for £125,000 and had financed her daughter’s purchase of a
house in the same road for £120,000. She also had three bank
accounts and during the 14 months prior to her arrest had deposited
more than £113,000 into them.
At a confiscation hearing at Liverpool Crown Court, His Honour Judge
George said that he found Roach to be an ‘unreliable and untruthful
witness,’ that she had ‘a criminal lifestyle’ and had benefited from her
crimes to the tune of £852,231. The assets she had available amounted
to £242,807, which he ordered to be confiscated.
(she) had benefited from
her crimes to the tune of
£852,231.
PRACTICAL ENFORCEMENT
25
S107a bro AW
20/6/07
1:22 pm
Page 26
Benefit Fraud and Piracy
In August 2006, following an investigation by the Department for Work
and Pensions, Sefton Trading Standards and the music industry, it was
found that Andrew King and Angela Jones, of Formby, had jointly
benefited from their mail order trade in pirated music CDs, DVDs and
computer games to the tune of £835,981. The judge found that both
had assets available to be confiscated and ordered Jones to pay
£437,725 in full within six months or face a further three years in prison
in addition to the original sentence of six months. King was ordered to
pay £198,256 within six months or face a further two and a half years’
imprisonment on top of his original sentence of 21 months.
It had earlier been found that Jones had falsely claimed more than
£25,000 in benefit during the two years prior to her arrest and the
NWRART enquiry revealed that she had no other legitimate form of
income. The NWRART investigators were also unable to find any form
of legitimate income for King, yet the couple owned their £200,000
home in Formby along with two Ford Mondeo cars. They also had a
joint bank account through which unexplained deposits in the previous
two and a half years amounted to £111,000. Deposits into further
accounts amounted to almost £17,000.
Jones had falsely
claimed more than
£25,000 in benefit
during the two years
prior to her arrest
26
S107a bro AW
20/6/07
1:22 pm
Page 27
“You are people who are being
used by criminal people but all
the same you are conducting
your own lives here and choose
to break the law. Prison is the
only appropriate sentence.”
Illegal Immigrants Feeding Organised Crime through Piracy
As a result of a joint initiative in February 2007 between Hackney
Council, police, FACT and the Immigration Service, two men and five
women, all of whom were Chinese nationals, were arrested. The
initiative targeted prolific pirate DVD sellers in the area, in particular
dealers who were using the car park of Tesco supermarket in Hackney
as their pitch.
Six defendants, who were all identified as being in the UK illegally, were
subsequently sentenced, receiving five month prison sentences,
suspended for two years, along with 10 year ASBOs. They also all
received prohibition orders lasting two years requiring them not to break
any of the immigration conditions imposed by the Immigration Service.
Judge Stephen Dawson said to the six defendants, ‘You are being used
by gangmasters in the criminal fraternity and were being sent [to the UK]
to commit crime…You are people who are being used by criminal
people but all the same you are conducting your own lives here and
choose to break the law. Prison is the only appropriate sentence.’
Speaking later he also added, ‘These are very serious matters. I feel that
it is highly likely that you are being used by sophisticated gang criminals
in order to fund criminal activity in general.’
THE PROBLEM OF COPYRIGHT THEFT
27
S107a bro AW
20/6/07
1:22 pm
Page 28
Forensic analysis of the
computer, revealed
paedophilic material
Piracy and Paedophilia
Instances are all too common of raids by enforcement officers in which
seizures include both pirated DVDs and pornographic or paedophilic
material.
In October 2005, in a routine raid in North Wales, following a complaint
from a local school that a coffee shop was selling counterfeit DVDs,
trading standards officers searched the property and found a thousand
DVDs and CDs. The i nvestigation also uncovered two burners and one
computer. Forensic analysis of the computer, revealed paedophilic
material and the matter was immediately referred to the North Wales
High Tech Crime Unit who carried out forensic analysis. The case is
currently ongoing.
In August 2006, Hampshire Police received a complaint from a member
of the public in Aldershot who had purchased a film from a Chinese DVD
seller. When the member of the public subsequently viewed the disc, he
found that it contained scenes of paedophilia and reported the matter
immediately to Hampshire Police who carried out a series of
observations at a local trading estate and arrested the Chinese male.
The male was found in possession of a number of paedophilic discs. A
house search resulted in a further 818 DVDs and pornographic discs
being seized.
A convicted sex offender, Christopher Fenn, from Ilford, Essex was
sentenced, in November 2006, to 15 months’ imprisonment at
Snaresbrook Crown Court for conspiracy to defraud the film industry
and another 15 months for conspiracy to defraud the music industry.
The defendant was already serving a five year jail term for making
indecent images of children. Fenn and an associate were manufacturing
pirate DVDs and CDs and selling them on local markets and via
advertisements.
28
S107a bro AW
20/6/07
1:22 pm
Page 29
Children Exploited to Avoid Prosecution
The exploitation of children to ‘front’ the sale of pirate products has
been a particular problem in Glasgow. In July 2006, a girl aged 16 was
arrested outside a pub as she tried to sell counterfeit DVDs in and
around the local area. As the offender was a juvenile she was released
on an undertaking and is due to appear in court.
In 2006, FACT investigators in Scotland reported five cases where the
suspect was less than 16 years old. It is increasingly worrying that
children as young as 11 are becoming involved in the sale of counterfeit
DVDs as well as other goods including pornographic material.
Donald Daisley, who
was twice caught by
trading standards at
Ayr Sunday Market
with illegal DVDs,
was filmed covertly
at his hidden vehicle
with one of his
teenage ‘runners.’
He was sentenced to
two years and 10
months'
imprisonment.
Children as young as 11 are
becoming involved in the sale of
counterfeit DVDs as well as
other goods including
pornographic material.
THE PROBLEM OF COPYRIGHT THEFT
29
S107a bro AW
20/6/07
1:22 pm
Page 30
LEGAL SUMMARY
The following guide has been compiled by FACT.
Prosecutions for piracy will usually consist of trade mark and/or
copyright breaches and also conspiracy to defraud. Consideration
should also be given to use of the Fraud Act 2006 when dealing with
these offences.
COPYRIGHT OFFENCES
Section 107, Copyright, Designs and Patents Act 1988
Elements of the Offence
The illegal activity must be in the course of a business
Section 107(1) A person commits an offence who, without the licence
of the copyright owner –
Section 107 (1) (a) makes for sale or hire, or
Section 107 (1) (b) imports into the United Kingdom otherwise than for
his private and domestic use, or
Section 107 (1) (c) possesses in the course of a business with a view to
committing any act infringing the copyright, or
Section 107 (1) (d) in the course of a business –
(i)
(ii)
(iii)
(iv)
sells or lets for hire, or
offers or exposes for sale or hire, or
exhibits in public, or
distributes, or
Section 107 (1) (e) distributes otherwise than in the course of a business
to such an extent as to affect prejudicially the owner of the
copyright,
30
S107a bro AW
20/6/07
1:22 pm
Page 31
an article which is, and which he knows or has reason to believe is, an
infringing copy of a copyright work.
Section 107 (1) (a), (b), (d), (iv) and (e) above are all either way offences
for which a maximum sentence of ten years’ imprisonment and / or
an unlimited fine are available by way of penalty on indictment.
Section 107 (2A) communicates a (copyrighted) work to the public (a) in
the course of a business or (b) to such an extent as to affect
prejudicially the owner of the copyright.
Section 107 (2A) above is an either way offence for which a maximum
sentence of two years’ imprisonment and / or an unlimited fine are
available by way of penalty on indictment.
Section 107 (1) (c), (d) (i) (ii) & (iii) above are summary only offences for
which a maximum sentence of six months’ imprisonment and / or a
fine of £5,000 are available by way of penalty.
See Section 107 (2) for other possible offences involving the seizure of
computers, printers, and scanners used to manufacture infringing DVDs
and packaging.
Evidence Required
It is necessary to prove that the defendant was making or dealing with
an article in a prohibited manner.
This may be achieved by proving –
(i)
evidence that a defendant made an article for sale or hire, e.g.
by showing that the defendant had possession of or access to –
•
•
•
•
manufacturing equipment,
blank discs,
master copies,
price lists,
OR
(ii) evidence that a defendant has dealt with the article in a prohibited
manner, e.g.
LEGAL SUMMARY
31
S107a bro AW
•
•
•
•
20/6/07
1:22 pm
Page 32
by means of a test purchase,
observation at scene,
admissions by defendant,
inferences from circumstances of the seizure of goods,
AND
(iii) evidence that the activity complained about took place in the course
of a business, e.g.
• multiple copies seized,
• advertisements for the goods, including those advertisements
which may appear on the Internet,
• article(s) exhibited or exposed for sale on business premises,
• multiple DVD or CD cases, printed sleeves and labels,
• business and financial records,
• multiple DVD or CD burners and blank recording media (DVDRs and CD-Rs),
• e-mail correspondence with customers,
AND
(iv) evidence that the goods were infringing copies of copyright works
(provided by the copyright owner or their representative),
AND
(v) evidence that the copyright owner did not give permission in relation
to the defendant’s activity (provided by the copyright owner or their
representative),
In interview a simple question such as "Has the owner of the
copyright consented to you copying these products?" can also
provide important evidence as to lack of consent.
AND
(vi) evidence that either –
• the defendant knew that the goods were (counterfeit), or
• a reasonable person would have known that the goods were
infringing.
32
S107a bro AW
20/6/07
1:22 pm
Page 33
Suitable lines of questioning to deal with a potential defence
•
•
•
•
•
•
•
•
Does the defendant understand what is meant by film, music, book,
audio book or software piracy?
( If they answer "yes" ask for an explanation in their own words, this
may assist in proving the necessary mental element).
Where were the goods obtained and details of the supplier?
How much did the defendant pay for the goods?
Are there any receipts for the goods?
Does the defendant claim any written authority or licence from the
copyright owner to copy the suspect goods?
How is the defendant able to sell the goods so cheaply?
Why are there multiple copies?
What steps were taken to verify that the goods were genuine?
TRADE MARK OFFENCES
Section 92 (1) Trade Marks Act 1994
Elements of the Offence
The illegal activity must be in the course of a business
A person commits an offence who, with a view to gain for himself or
another, or with intent to cause loss to another, and without the consent
of the proprietor –
Section 92 (1) (a) applies to goods or their packaging a sign identical to,
or likely to be mistaken for, a registered trade mark, or
Section 92 (1) (b) sells or lets for hire, offers or exposes for sale or hire
or distributes goods which bear, or the packaging of which bears,
such a sign, or
Section 92 (1) (c) has in his possession, custody or control in the course
of a business any such goods with the view to the doing of
anything, by himself or another, which would be an offence under
paragraph b.
LEGAL SUMMARY
33
S107a bro AW
20/6/07
1:22 pm
Page 34
See section 92 (2) and (3) for other possible offences.
Section 92 (3) (b) makes it an offence to have an article in his
possession, custody or control in the course of a business, knowing
or having reason to believe that it has been, or is to be, used to
produce goods, or material for labelling or packaging goods, as a
business paper in relation to goods, or for advertising goods.
This section will assist in the seizure of computers, printers, and
scanners used to manufacture infringing DVDs, CDs and packaging.
Section 92 offences are all either way offences, for which a maximum
sentence of 10 years’ imprisonment and / or unlimited fine are
available by way of penalty on indictment.
Evidence Required
It is necessary to provide –
(i)
evidence that a defendant has committed an offence contrary to
section 92 (1) e.g.
•
•
•
•
by means of test purchase,
observations at the scene. i.e. selling,
admissions by defendant,
inferences from circumstances of the seizure of the goods,
AND
(ii) evidence that the activity complained about took place in the course
of a business, e.g.
• multiple copies,
• business records / cash found on accused,
AND
(iii) evidence as to the existence of a trade mark:
• trade mark certificates may be obtained after the product has
been examined by the trade mark owner or their representative.
34
S107a bro AW
20/6/07
1:23 pm
Page 35
Defences
Whilst the ultimate burden of proving the offence rests on the
prosecution, a defendant may not be convicted if they satisfy the court
that they believed, on reasonable grounds, that the goods were
genuine.
Suitable lines of questioning to deal with a potential defence
1. Does the defendant understand what is meant by film, music,
software, books or audio books piracy?
(If they answer "yes" ask for an explanation in their own words, this
may later negate the statutory defence).
2. Where were the goods obtained and details of the supplier?
3. How much did the defendant pay for the goods?
4. Are there any receipts for the goods?
5. Does the defendant claim any written authority or licence to copy or
use the trade mark on the suspect products, i.e. by manufacturing
and distributing them?
6. How is the defendant able to sell the good so cheaply?
7. Why are there multiple copies?
8. What steps were taken to verify that the goods were genuine?
It should be noted that the burden of proving this defence rests on the
defendant and the defence will fail if either –
(a) the defendant did not believe,
OR
(b) they had no reasonable grounds to believe that the goods were not
infringing.
The poor quality of the goods in question may also be relevant.
If genuine goods are being sold alongside counterfeits, the
genuine goods should also be seized as relevant evidence to
underline that the defendant must have known that the goods
were counterfeit.
LEGAL SUMMARY
35
S107a bro AW
20/6/07
1:23 pm
Page 36
RESOURCES AND SUPPORT
The following industry bodies offer
support and assistance to trading
standards professionals.
The Alliance Against IP Theft
The Alliance Against Intellectual Property Theft is a unique coalition of 17 UK
trade associations and enforcement bodies, providing a single voice for those
who share an interest in preventing intellectual theft in the UK. With a
combined turnover of over £250 billion, our members include representatives
of the film/TV and video, music, games, business software industries, branded
manufactured goods, publishers, retailers and designers.
We are concerned with ensuring intellectual property rights are valued in the
UK and that a robust, efficient legislative and regulatory regime exists, which
enables these rights to be properly protected. Our Members work closely
with trading standards and local police forces to reduce the harm caused by
intellectual property crime in local communities and ensure legitimate
businesses and traders are able to operate fairly.
We work closely with the Department of Trade and Industry and the UK
Intellectual Property Office to raise awareness of the harm caused by IP theft,
and are also active supporters of, and participants in, the IP Crime Group,
which facilitates cross-departmental dialogue and joint working amongst the
relevant enforcement bodies and organisations.
Contact: Susannah Winter, Director General, Alliance Against IP Theft,
167 Wardour Street, London, W1F 8WL
t: 020 7534 0595 f: 020 7534 0581 e: [email protected]
British Phonographic Industry
The BPI is the trade association for the British record music industry.
It has an anti-piracy unit of 12 staff dedicated to fighting music piracy
throughout the UK.
The BPI provides expert evidence on behalf of the industry on copyright and
trade mark infringement and can assist in training in investigative techniques.
Contact: David Wood, Head of APU, The BPI,
Riverside Building, County Hall, Westminster Bridge Road, London, SE1 7JA
t: 020 7803 1300 f: 020 7803 1330 e: [email protected]
36
S107a bro AW
20/6/07
1:23 pm
Page 37
The British Video Association (BVA)
The British Video Association (BVA) represents the rights owners of prerecorded home entertainment, whether on packaged media or in digital formats.
We support FACT on enforcement matters, work with the Industry Trust for IP
Awareness on awareness building campaigns and as members of the Alliance
Against IP Theft to lobby for legislative reform of IP law.
Contact: Lavinia Carey, Director General, British Video Association,
167 Great Portland Street, London W1W 5PE,
t: 020 7436 0041 e: [email protected]
The Copyright Licensing Agency Limited (CLA)
CLA is a not for profit company that licenses schools, colleges, universities,
government departments, NHS, local authorities, police, etc, and businesses, to
photocopy and scan from books, journals and magazines.
Licence fee revenue is distributed to authors and publishers. CLA has been a
corporate affiliate member of the Trading Standards Institute since 2001.
Copyright Compliance Unit (CCU)
CLA’s Copyright Compliance Unit mounts covert operations to detect copyright
infringement of books, journals and magazines.
The Unit has used test purchasing methods corroborated by covert video
evidence to support legal action against businesses copying books and
journals. In one such case in Nottingham, over 500 copies of 100 books were
seized from a local copy shop.
Our covert operations are directed primarily at the corporate sector, where we
seek to obtain evidence of illegal copying by using undercover agents or
whistleblowers.
Whistleblowers
Under its Copywatch banner, CLA offers whistleblowers substantial rewards for
information about illegal copying see www.copywatch.org.
Trading Standards Officers
Can now use their powers under the TDA to gain entry to business premises
RESOURCES AND SUPPORT
37
S107a bro AW
20/6/07
1:23 pm
Page 38
and secure evidence of copyright infringement of books, journals and
magazines. Infringing material may be in hard copy or scanned on to the
company intranet.
If required, a CCU investigator can accompany the TSO to assist in identifying
the source of any copied material seized and will also obtain witness statements
from the relevant copyright owners.
Contact: Peter Knight, Chief Compliance Officer t: 07764 569743.
FACT
The Federation Against Copyright Theft limited (FACT) is a non profit trade body
set up in 1983 to protect the film and broadcasting industry against copyright
and trade mark infringements in the United Kingdom.
FACT, although not a statutory authority or public body, as a private company
works within the spirit of the Regulation of Investigatory Powers Act 2000
(RIPA), the Data Protection Act 1998 and the Human Rights Act 1998.
FACT has well established links with the police, trading standards, Her Majesty’s
Revenue & Customs and other statutory enforcement agencies. Almost
exclusively, former police officers and trading standards officers staff the
organisation.
• FACT provides advice and assistance in any enquiry, or in relation to any
intelligence, concerning the manufacture or distribution of pirate films.
• The organisation accompanies or advises officers on any related enforcement
action or planning for a forthcoming operation including conducting searches
and giving practical advice on the identification, collection and packaging of
relevant productions. This can be authorised in a search warrant granted
under section 109 of the CDPA 1988.
• When an arrest has been made, an experienced FACT investigator can be
contacted and will attend the police station at a mutually agreed time,
examine, and collect for forensic examination (allow 6-8 weeks) or dispose of
FACT members’ products seized in the course of that arrest or detention.
• FACT assists in PACE interviews when requested; attends bail returns, if
required, to provide assistance; attends court as expert witnesses to support
CPS prosecutions.
38
S107a bro AW
20/6/07
1:23 pm
Page 39
• The organisation provides forensic evidence to examine computers seized to
support a charge (for computer analysis allow 12-16 weeks). If seized, FACT
can establish passwords, verify if the computer was connected to a phone
line and provide reasons as to the necessity for the computer to be examined.
• FACT offers intelligence assistance using FACT’s i2 Analytical Unit and the
National Intelligence Model and provides advice and intelligence generally on
film piracy, including training sessions.
Contact: FACT
7 Victory Business Centre, Worton Road, Isleworth, Middlesex TW7 6DB
t: 020 8568 6646 f: 020 8560 6364 e: [email protected]
FAST - Federation Against Software Theft (The Federation)
The Federation was the world’s first anti-piracy organisation working to protect
the intellectual property of software publishers. It was formed in 1984 and its
initial remit was to lobby Parliament for changes in the law which resulted in ‘a
computer program’ being included in the definition of a ‘literary work’ in the
Copyright, Designs and Patents Act 1988. Although lobbying is still part of The
Federation’s aim, its activities have broadened over the years such that it now
addresses the misuse, overuse and theft of software intellectual property in the
following ways:
• utilising civil and criminal processes;
• lobbying Parliament to strengthen the provisions of the Copyright, Designs
and Patents Act including increasing Director’s liability under the Act;
• educating organisations through the FAST Standard for Software Compliance
(FSSC1-2004);
• education through schools and universities;
• increasing awareness of software intellectual property theft within the user
community by a continuous programme of press, television and radio
interviews and articles.
Contact: Julian Heathcote-Hobbins, Senior Legal Counsel,
York House, 18 York Road, Maidenhead, Berkshire SL6 1SF
t: 01628 622 121 f: 01628 760338 e: [email protected]
RESOURCES AND SUPPORT
39
S107a bro AW
20/6/07
1:23 pm
Page 40
Industry Trust for IP Awareness
The Industry Trust for Intellectual Property Awareness was established in 2004
to tackle the growing issue of film and TV copyright theft in the UK. Today it has
approximately 30 members including film and TV distributors, cinemas, DVD
retailers and home entertainment rental companies. The Trust’s goals are to:
• limit copyright theft in terms of consumption of both physical copies and
illegally downloaded digital content;
• limit the damage counterfeit DVDs and illegal downloads can cause, not just
to the creative industries but to consumers and communities;
• be a voice for the industry on protection of copyright and the value of
creativity.
The Industry Trust seeks to achieve its aims through consumer education and
awareness campaigns and the provision of training and information for those
working to protect and enforce copyright.
It works with the industry’s anti-piracy body, the Federation Against Copyright
Theft (FACT), trading standards, the police and other agencies to help combat
copyright crimes. The Industry Trust also supports the work of the Alliance
Against IP Theft www.allianceagainstiptheft.co.uk in lobbying for more effective
enforcement and tougher legislation against fakes.
For more information on the Industry Trust’s Work visit
www.copyrightaware.com
As part of its 2007 UK anti-piracy strategy, The Industry Trust has launched a
major, new initiative to help tackle film and TV copyright theft in the UK.
Background
The new consumer marketing campaign is the culmination of six months’ work
by Trust members and has been designed to reduce demand for pirate product
and engender value and appreciation for copyright. With one in three people
now viewing or acquiring illegal content, the campaign will play an important
part in tackling copyright theft in the UK. The campaign will sit alongside and
support the work of FACT, trading standards, the Alliance against IP Theft and
all enforcement and lobbying bodies.
The Campaign
At the core of the campaign is a national TV advertising push which goes live
from 4th June, this will be supported by online marketing and PR initiatives. The
40
S107a bro AW
20/6/07
1:23 pm
Page 41
advert will also be screened in cinemas through June and July. A partnership
with JD Wetherspoon will see beer mats, posters and advertising in 670 pubs
nationwide, taking the campaign close to a key point of sale for physical
counterfeit copies – the pub environment.
The new campaign differs from and will complement the industry’s previous
approach which focused on enforcement messages and the criminal nature of
those who trade in counterfeit goods. It uses humour to engage audiences and
introduces a new terminology to help create a social stigma around the
purchase of illegal content. The campaign is intentionally unbranded at the
initial launch stage.
The campaign introduces new terminology, using ‘knock off" rather than ‘piracy’
to identify and associate counterfeit products as copyright theft. It seeks to
challenge purchasers of counterfeit products to question their behavior and
depicts this as a negative aspect of society akin to a variety of socially
unacceptable behaviors.
The rationale for this is that research shows one of the key reasons people use
to justify their purchase or consumption of counterfeit material is the belief that
the industry makes enough profit to be able to withstand these losses. Clearly
when the industry is losing 15% of its retail value through copyright theft this is
a misconception and one which fails to recognise the threat copyright theft
poses for the 200,000 plus people employed by the UK industry. To avoid
dismissal of the campaign’s message as an attempt to protect industry profits,
it will not be badged by the industry and we would be grateful if representatives
of trading standards would avoid volunteering information which makes this link
explicit in their dealings with the public.
The multi-channel campaign will run alongside ongoing communications
carrying enforcement messaging which educate consumers about the risks and
penalties attaching to copyright theft.
For more information on the campaign visit www.knockoffornot.com
The Industry Trust will continue to partner with trading standards and FACT to
support enforcement work at a local level. This includes the provision of print
materials raising awareness of the impact of copyright theft and penalties for
participation in such activities.
Later in the year, additional work will encourage respect for the value of
copyright and the unseen skills of those people working behind the scenes in
the film and TV industries that contribute to creating the content consumers
enjoy.
RESOURCES AND SUPPORT
41
S107a bro AW
20/6/07
1:23 pm
Page 42
Support for Trading Standards
The Trust is able to provide documentation and support materials aimed at
reducing consumer demand for counterfeit film and TV products.
The Trust can also provide support for the implementation of best practice
guidelines for the effective control of car boot sales and other markets.
Contact: Liz Bales, Director General, Industry Trust for IP Awareness,
Prospect House. 80 - 110 New Oxford Street, London WC1A 1HB
t: 0207 079 6329 m: 07961 139024 e: [email protected]
The Publishers Association
The Publishers Association represents the UK's book journal and electronic
publishing industry. It can assist trading standards in the following way:
Authorised representative - the PA is authorised to act on behalf of its members
in cases of counterfeiting and piracy.
Identifying rights owners - rights ownership can be complex, especially with
audio books or international products. The PA can identify which member or
members hold rights in a work and arrange introductions or injured party
statements where required.
Intelligence - the PA holds data on repeat offenders including personal
information, offences, previous actions taken against the subject etc. This
intelligence can help in ways ranging from exposing the scale of a suspect’s
activities to proving that he had previously been made aware that his activities
were illegal.
Case development - the PA can provide fully developed cases including IP
statements, investigator's statements, test purchases, criminal gain estimates
etc.
Analysis of evidence - the PA is happy to examine any evidence obtained by
trading standards professionals to establish whether or not it is counterfeit.
Evidence - where required it can provide expert witnesses and can attend at
court.
Contact: Robert K Hamadi, Head of eCrime
The Publishers Association, 29B Montague Street, London WC1B 5BW
t: 020 7691 9191 f: 020 7691 9199 e: [email protected]
42
S107a bro AW
20/6/07
1:23 pm
Page 43
UK-IPO
The UK-IPO leads the national IP Crime Strategy and provides a number of
resources for enforcers, such as the aide-memoire explaining current law on
counterfeiting and piracy, and the Snide interactive DVD, which takes users
through an investigation and prosecution. The IPCass database includes a
selection of past prosecutions, which may be helpful in ensuring an effective
prosecution. Legal guidance accompanying the commencement of s107 is also
available via the UK-IPO website.
Information on the IP Crime Strategy is available at: www.ipo.gov.uk/crime.
Video Standards Council (VSC)
The VSC was established in July 1989 in response to Government concerns
about the video industry. The VSC is a non-profit-making company and its
primary task is to develop and administer a Code of Practice which has been
designed to promote high standards within the video industry and to ensure that
pre-recorded video is provided to the public in a responsible manner.
In July 1993, the VSC extended its Code of Practice to promote high standards
within the computer games industry and otherwise to ensure that games are
provided to the public in a responsible manner.
Written and produced by:
Patricia Lennon
t: 01943 816292
m: 07903 195462
e: [email protected]
RESOURCES AND SUPPORT
43
20/6/07
1:23 pm
Produced by Patricia Lennon. Tel 01943 816292
S107a bro AW
Page 44