Monday, 9 April 2012

Dire traits – a curious case of copyright extradition

In an English copyright extradition case last year (Sitek v Swidnica Circuit Court, Poland [2011] EWHC 1378 (Admin)), the court’s decision to permit the appellant’s extradition to Poland turned on the assertion in a European Arrest Warrant that various audio and music files had “the traits of illegal copying”.   Mr Justice Lloyd Jones ordered extradition for those items, but refused it for games and software in respect of which the warrant made no similar assertion.   

Under our minimalist European extradition procedures, the prosecution were not required to state what the alleged traits consisted of, let alone provide supporting evidence.  Troublingly, it was sufficient for the warrant to make a bare formulaic assertion at a level of generality free of any concrete detail. 
Why did the alleged traits make the difference between extradition or not?  This brings into focus another significant aspect of the case.  The defendant Sitek was charged in Poland with copyright offences based on his acquisition of the computer games, software, audio and music files.  To qualify for extradition the prosecution had to show that the conduct alleged in the warrant would amount to an offence in England.  It was not suggested that the offence fell within the list of 32 EAW offences for which dual criminality is abolished. 
However the prosecution did not argue that the conduct alleged against Sitek would have constituted a copyright offence in England.  Clearly it would not have done, since the allegation was of mere acquisition and possession.   Instead, they relied on the Proceeds of Crime Act 2002.  This makes it a criminal offence to acquire or possess criminal property.  Property is criminal property if it constitutes a person's benefit from criminal conduct or represents such a benefit, and the alleged offender knows or suspects that it constitutes or represents such a benefit.
So the prosecution had to show that if the alleged conduct had occurred in the UK, then:
(a)  Someone up the distribution chain would have committed a criminal offence

(b)  The copies alleged to be in Sitek’s possession would have constituted or represented someone’s benefit from such criminal offence; and

(c)   Sitek would have known or suspected that to be the case.
As to (a) the judge held that it could be inferred from the allegations in the EAW that someone up the chain had either made the copies for sale or hire, or distributed the copies in the course of a business or otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright.  The judge drew attention to the value placed on the items in the description of the offences: “while not on a massive scale, these are, with the exception of Offence 4, not insubstantial quantities of infringing articles”.   
The loss caused to distributors by the audio and music files on which Sitek was ultimately ordered to be extradited was alleged to be as follows: p2p  audio files recorded into MP3: PLN 1,804; audio files with the repertoire of Polish and foreign music: PLN 407.97.  At the exchange rate prevailing at the time of the alleged offences, the total alleged loss to distributors on those items was about £370 (PLN 2,212).
The items on which Sitek was not extradited were alleged to have caused losses of PLN9,482.
The judge also held that it could be inferred that the person dealing up the chain knew or had reason to believe that the article was an infringing copy, since each of the descriptions in the warrant alleged that the appellant "should and could have assumed" in the circumstances that it had been obtained by means of a prohibited act in contravention of licence. Thus the same should and could have been equally obvious to any other person dealing in the items.   There was therefore sufficient basis to infer that someone up the chain would have committed a criminal copyright offence.
As to (b) the judge held that mere possession of the items by a person prior to the acquisition by the appellant would be sufficient to constitute a benefit.
As to (c), the prosecution had to show that Sitek would have had not just objective grounds on which he ought to have assumed that the items were infringing, but would in fact have known or suspected that to be the case.  The allegation that he “should and could have assumed” in the circumstances that the items were infringing fell short of alleging subjective knowledge or suspicion.  The case of dual criminality in relation to computer games and software therefore failed. 
However, the allegations in relation to the audio and music files contained the additional assertion that they had “the traits of illegal copying”.  This was enough to tip the balance and enable the judge to infer subjective knowledge or suspicion:
“While no further particulars of these allegations are provided, these are to my mind statements of primary fact from which conclusions may be drawn, albeit stated once again at a level of considerable generality. I consider that this description of the files is a matter which is capable of sustaining the necessary finding of knowledge or suspicion for the purpose of the relevant Offence in English law, in particular when considered in conjunction with the other more general allegations contained in all four statements of Offence.”
The Sitek case illustrates both the minimal level of detail which is required to be included in an EAW and the extent that the courts can make inferences based on quite general allegations. 
It also demonstrates that dual criminality in a copyright case may be based not just on a corresponding copyright offence, but on a catch-all statute such as the Proceeds of Crime Act 2002.  This can render conduct criminal (such as in this case mere possession) which is not an offence under the copyright legislation itself.

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