British Music Rights is the consensus voice of Britain’s composers and songwriters, music publishers and their collecting societies. The members of British Music Rights are the British Academy of Composers & Songwriters, the Music Publishers Association (MPA), the Mechanical-Copyright Protection Society (MCPS) and the Performing Right Society (PRS) together representing some 50,000 music writers and publishers.

Our brief response focuses on two specific areas which are of key significance for our members, namely:

• Presumption of authorship and subsistence: harmonisation along the lines of the model provided in the Irish Copyright Act (see note 1)  to ensure that presumptions in both civil and criminal proceedings cover both authorship (as is already the case under UK Copyright law  but limited to civil actions - see note 2) and subsistence (which is not provided for in UK copyright law for either civil or criminal proceedings).
• Reversal of burden of proof: the reversal of the burden of proof regarding the possession of a licence to use a musical work in cases where the claimant has established subsistence and ownership of the relevant copyright work.

As such we have answered only Question 3(a): “In what circumstances is it acceptable for the burden of proof to be reversed or altered in some way?” and accordingly we have submitted two proposals relating to copyright infringement specifically.

Different approaches in European Member States requires  a harmonised approach in this area which would also be compatible with Article 6 (2) ECHR.

1. Presumption of authorship and subsistence
The practical experience of the MCPS Anti-Piracy Unit (the music industry organisation that investigates the illegal use of musical works on behalf of composers, songwriters and music publishers in the UK) is that it is a typical ruse of criminals behind commercial pirate operations to force the claimant to prove not just authorship but also subsistence of copyright and respective ownership.
 
Consequentially, in addition to proving that a copyright infringement has taken place, there is an onerous obligation on criminal prosecutors to prove all aspects of copyright, such as subsistence of copyright, authorship of the work, chain of title, assignments, and so on.  This may in practice even require witnesses to be flown in from overseas. In theory, a meritorious copyright owner should have nothing to fear from being put to proof. 
 
However, in practice a well-advised and often publicly-funded defendant is able to drag out a good case and thus frustrate the prosecution.  In our experience, whilst it might be feasible to prove the copyright elements mentioned above, the requirement to do so delays matters considerably, thus giving succour and comfort to counterfeiters and pirates.  Invariably, the length and more importantly the costs of the case are increased considerably.  MCPS has had experience of a trial estimated to last 8 working days which in fact lasted 43 working days, but the defendant was convicted nevertheless. The combined total costs of the case exceeded £500,000.
 
In the UK many criminal prosecutions for copyright infringement are instigated by the Crown Prosecution Service (“CPS”) or Local Authorities (“LAs”). These bodies tend to be under-resourced. Subsequently these organisations are discouraged from taking on a court case that could last for months given the limited financial means and caution with regards the expense of considerable sums of public money on prosecuting copyright infringements. We recognise that defendants exploit these facts and as a tactic plead highly spurious technical defences designed purely to dissuade the CPS and LAs from prosecuting. The effectiveness of such tactics could be reduced with the help of firmer presumptions within copyright law.
 
In the UK, limited presumptions are set down in Section 104 of the Copyright Design and Patents Act 1988. These relate only to authorship, and do not apply to criminal prosecutions. We believe that presumptions as to authorship (logically also encompassing ownership and subsistence) should apply to criminal cases in order to avoid publicly-funded defendants putting the prosecution to proof in order to frustrate proceedings and exhaust prosecution funds.
 
We strongly recommend that a review of copyright presumptions across the EU is undertaken with a view to harmonisation at the level set in the Irish Copyright Act (in order to encourage expediency  of procedures as well as relieve the burden on the state).

2. Reversal of burden of proof:
In addition, we believe that the burden of proving lack of licence should be reversed in the criminal provisions of copyright laws of all EU Member States. In the UK, in order to bring a criminal prosecution for any of the offences set out in copyright legislation (see note 3), the rights holder must prove that the defendant has not been granted a licence by any party entitled to license the use. Due to the worldwide nature of copyright, the complex international division of rights and that fact that licensees sometimes hold concurrent licensing rights exercisable for different territories, lack of licence from any possible source can be extremely hard to prove.

We recommend that the burden of proof in this area be reversed, and believe it can be done so without infringing the ECHR. There are other legislative provisions in the UK and in other European member states which have managed to effectively revered burdens of proof (e.g. firearms and TV licences) where the practical difficulties for the claimant of proving lack of licence are disproportionately onerous compared to a requirement for the defendant to produce the licence on which he seeks to rely. The UK courts have safeguarded the defendant’s constitutional rights in these situations by stating that once the defendant meets the evidential burden of proving their licence, it is then for the claimant to disprove its validity to the criminal standard.

Our understanding is that in France the burden of proof for copyright offences has been reversed.

For the aforementioned reasons we urge that this principle is harmonised throughout the EU.

Notes

1. http://www.irishstatutebook.ie/ZZA28Y2000S139.html
2. Section 104 Copyright Designs and Patents Act 1988
3. Section 107 Copyright Designs and Patents Act 1988