Neeraj Thomas: Online pirates sailing into dangerous waters

THE passing of the Digital Economy Act this month means suppliers and users of illegal streams offered through such services as Kodi add-ons, could be sentenced to up to ten years imprisonment, if convicted of illegally streaming content protected by copyright.

There are strict rules governing the screening of football matches on subscription channels such as Sky in licensed premises

This significant change has been introduced as a result of the exponential increase in the use of set-top boxes to stream copyright protected material into homes and business premises (often licenced premises), thus avoiding payment for legitimate satellite or cable services.

The product offered by Kodi is a media player, similar to the media player offered by Windows. However, as it is open-source software, it can be adapted for illegitimate use with various third party add-ons that give the devices’ owners unlawful access to a whole range of content they should be paying for – or should not be able to watch at all, like films currently only available in the cinema.

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The general consensus is that prosecuting authorities will use those powers to take action against the suppliers of such boxes in the first instance, but there is a feeling within the industry that end users (ie individuals using these boxes) might feel the wrath of these new powers too.

Neeraj Thomas is a Senior Associate, Burness Paull.

The ability to take criminal action against those found to have infringed copyright is nothing new. The Copyright, Designs and Patents Act 1988 has previously permitted rights holders the ability to pursue criminal action. As a result of these powers, suppliers of infringing systems have been imprisoned and fined. However, the effectiveness of taking such criminal actions, in Scotland at least, it not without its problems.

Although the 1988 Act is applicable throughout the UK, the criminal provisions operate differently in Scotland. South of the Border, rights holders such as Sky can pursue private criminal prosecution, and take infringers through the criminal court system. In Scotland, criminal action has to be taken by the Procurator Fiscal. The PF’s office deals with the full range of criminal prosecutions in Scotland and clearly has a priority list.

So, if it is not within right holders’ gift to take their own criminal action in Scotland, how can they ensure their copyright is protected?

There might be lessons from the commercial operations of rights-holders and broadcasters, who have long taken action against owners and operators of licenced premises who show subscription-only programming (for example, football matches) without paying for the requisite commercial subscription agreement permitting them to do so.

Neeraj Thomas is a Senior Associate, Burness Paull.

George Lawson, Head of Commercial Operations at Sky, recently spoke at the inaugural Burness Paull IP & Technology Conference and provided an insight into how Sky Business takes action against infringing licensed premises in Scotland as well as how piracy issues have evolved.

The only legitimate way for a licensed premises to show football matches on Sky is with a commercial subscription agreement. Any other means will infringe Sky’s copyright and will involve them taking either their own civil action or passing details to the PF’s office and asking them to take criminal action. In Scotland, interim interdicts can be sought against owners and operators of licenced premises to prevent continued infringement of Sky’s 
copyright. .

Mr Lawson also spoke about how piracy and technology has evolved and the issue of pub customers taking their residential Sky viewing card into their local, allowing that pub to show Sky content without paying for it. In such an instance, Sky would cancel that residential viewing card and would likely also seek take court action. He explained how the technology and piracy had evolved and now Sky are dealing with third party suppliers supplying streaming boxes to pubs which gives them (illegal) access to a whole range of channels.

The issues faced by Sky are mirrored by a large number of rights holders throughout the UK and beyond. That’s why such rights holders were keen to see a change in the law to recognises the seriousness of online piracy.

Given the rising number of users of streaming systems with add-ons, it is clear new measures were needed. The new provisions are a sign the Government is beginning to realise the importance of tackling online piracy, and a recognition the law requires to be adaptable to keep up with evolving technology in this area.

Neeraj Thomas is a Senior Associate, Burness Paull