An interesting post on the Trichordist blog brought up an old chestnut that seems to come up wherever there are internet discussions about copyright. Someone always seems to pop up with an objection to use of the term “copyright theft”, claiming that pinching pictures is not “theft” in law. I thought I would explain why in my view “copyright theft” is the right term.
First let’s start with the word “piracy”. This is the normal term used by lawyers and non-lawyers alike to refer to the criminal offence (in the UK) under S.107 (1) of the 1988 Copyright, Designs and Patents Act 1988. The word “piracy” is not actually used anywhere in that Act, but it is the short form description commonly used to refer to that criminal offence (see for example this online legal dictionary), and it is widely used elsewhere – for example as the legal term to describe the offence in at least one international treaty – the TRIPS (which of course, has legal force in international law):
Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale.”
It is quite common among lawyers to use short form to describe criminal offences even where the word is not part of the definition of the offence itself. That is why “theft” in the 1968 Act is called “theft” and not “dishonestly appropriating property belonging to another with intent permanently to deprive”. Use of a short form term is easier, and punchier. Lawyers often think up short form descriptions that aren’t strictly part of the definition of the offence itself, such as “manslaughter”, “dealing”, “murder” and so on. The same happens in civil law – “negligence”, “nuisance” etc. as short form ways of describing complex legal concepts.
And so it is with “copyright theft”. The fact that “copyright theft” isn’t the same thing as the offence of “theft” under the 1968 Theft Act doesn’t matter. Copyright “piracy” is referred to as such despite the fact that such piracy has nothing to do with the Piracy Act 1850. And so “copyright theft” can accurately be used as a name to refer to the criminal offence under S. 107 (2A) of the 1988 Act, an offence which is punishable by up to 2 years in prison and/or a fine:-
“A person who infringes copyright in a work by communicating the work to the public -
(a) in the course of a business, or
(b) otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,
commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work.”
The title appears to be commonly used by lawyers fairly regularly – a typical random example taken from the internet here.
Of course, the criminal offence itself is distinct from a breach of copyright under civil law, and sometimes a civil breach is referred to as simply “copyright infringement”, though “copyright theft” is sometime also used to refer to a civil action to emphasise an element of culpability, and in practise a large proportion of civil copyright breaches will also be criminal offences. The two expressions “theft/infringement” are used fairly interchangeably and no doubt both are correct, but the term “copyright theft” seems more appropriate for a serious criminal offence, as “infringement” implies breach of a civil right or perhaps at worst a rule or regulation, rather than an indictable criminal offence.
As an aside, one rarely if ever hears people objecting to everyday use of the term “identity theft”, even though identity theft has nothing to do with the Theft Act. It’s odd that “copyright theft” should raise objections on some internet forums where the use of “identity theft” seems to slip past unchallenged.
So there you have it, my own explanation of why it is entirely correct to use the term “copyright theft”, whether or not you happen to be a lawyer.