DAMIAN BEASLEY-SUFFOLK
While the heinous crimes of former glam rock star Gary Glitter are forever etched into the public consciousness, the proposal for well-known musicians convicted of sex offences to have their royalties earned from the use of their creative works confiscated (in addition to their statutory punishments) is difficult to justify from a legal perspective. In such notorious cases, there is a need to: (i) maintain the rule of law, (ii) resist “angry mob” cries for retribution, (iii) prevent judgments and punishments which Jeremy Bentham called “private opinion in disguise” or “the mere opinion of men self-constituted into legislature” when railing against the common law in general,[i] and (iv) maintain predictability and uniformity of the application of law. This post will set out the essential nature of the Intellectual Property (IP) rights associated with creative artistic works, followed by a short discussion of the punishment regime for sexual offences in England and Wales to conclude that the proposal to confiscate royalties is not justifiable on legal grounds.
Music and the introduction of personal IP rights
IP rights are a means for individuals to make a living from their work. While artisans and craftspeople can make a living by selling their specialised products or manual skills (which are not easily copied), those whose living is made by using their skills to produce ideas or creative works such as music and literature which others find value in (such as authors and songwriters) suffer in that their work is often easily copied. Copyright – the right of an author to prohibit another from profiting from their work – is a means for enabling the author to make a living from their original work.
A very early reference to personal IP rights comes from Ancient Greece. A law stated that if a cook came up with a recipe for his restaurant, nobody else was permitted to prepare that dish for a year, allowing the cook to make an income from his skill and creativity.
Early composers, on the other hand, had to make private petitions to their monarch for protection of their work. Lully in France enjoyed the Privilège du Roi, an exclusive authorisation to print a work, granted by an authority (namely, the King). Both Lully and, years later, his great admirer Handel in England received Letters Patent, which provided both with exclusive licenses to sell and profit from their music. Handel was an impresario – his oratorios, although mainly on biblical themes, were often first presented in theatres.[ii] Putting on performances and selling copies of the sheet music was his living, and had the advantage (as with Lully and other composers) of not having to rely on patrons. More importantly, these exclusive licences allowed composers to prevent others from making copies of their works, selling them, and keeping the proceeds, thereby denying the composers of that income.
In England, this ad hoc private approach was replaced by the Statute of Anne, known as the Copyright Act 1710, “to prevent printing by third parties without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families.” The principle is that artists may profit from their creative labour just as any other worker, if people find value or enjoyment in it.
Modern creative rights evolved from this principle, and are found in the Copyright, Designs and Patents Act 1988. Broadly speaking, as there are some variations, this gives composers of musical works a copyright duration from the creation of the work extending to 70 years after the end of the year of their death (s.12), and performers a copyright over their recorded performance of 50 years from release of the recording (s.13). This takes into account the fact that creative people rarely have any regular salary. Being property rights, their benefit may be passed on to inheritors after the death of the owner, or disposed of according to their will.
Why the call for additional punishments?
Gary Glitter is notorious, but not unique, as a high-profile musician convicted of crimes which are now covered by the Sexual Offences Act 2003 (Ian Watkins, the disgraced former lead singer of Lostprophets, is another example). The Act sets out the punishments to be applied for each offence it includes, usually a term of imprisonment.
Hale et al., discuss the idea of a “Folk Devil”, as “… those figures in society we are encouraged to dislike and avoid, e.g., child sex offenders (also, in history, football hooligans, …). The target can change. The paedophile is the folk devil of our times.” [iii]O’Brien, defining sex crimes and, in particular, those involving children, describes the concept of moral panic as an exaggerated public outcry, based on little or no evidence and thereby missing the main point of such offences mostly being committed by close family members or friends.[iv] Though this does not diminish the severity of the crime, it may lead to “angry mob”-like reactions which may cause more harm than good. An offender for whom there may be a hope and capability of rehabilitation may, if it appears that all of the rights to their works are to be confiscated along with their potential to earn a livelihood, simply give up, undermining any efforts at re-integrating them into society, and may increase the risk of recidivism. This sounds like a harsh judgment of people who make up “angry mobs”, but serious mistakes have been made.
Parliament sets out specific punishments for specific crimes. There is also a statutory sentencing framework since 1991, and now in the Criminal Justice Act 2003, so judges do not have unfettered discretion in imposing a sentence – i.e. they may not act arbitrarily. Under Article 7 of the Human Rights Act 1998, a heavier penalty than the one which was applicable at the time the criminal offence was committed shall not be imposed. Any punishment beyond this, or one that is not specified by the law is therefore arbitrary, and consequently contrary to the rule of law. The application of criminal law confines itself strictly to the offence(s) concerned, and punishment is prescriptive with relatively limited scope for variation, with the intention that it is appropriate and severe enough for the offence.
This is a specific case in which IP, criminal law and, to an extent, criminology combine in an unusual manner.
In such cases, confiscation of future IP rights from someone convicted of an unrelated offence is impermissible because this is not prescribed in the relevant statute. Further, it is not the case that the royalties which a convicted musician in the present context collects for their existing work are proceeds of crime, which under the Proceeds of Crime Act 2002 could be confiscated. The 2002 Act refers only to assets acquired as the result of unlawful activity; income and assets lawfully acquired during their everyday occupations are not covered by the act. Similarly, in some US states, so-called “Son of Sam” laws have been enacted which seek to prevent convicted felons from profiting from their crimes by selling their stories or otherwise benefiting from publicity due to their criminal notoriety. These laws have often been struck down as infringing First Amendment rights to freedom of speech under the US Constitution, though an amended statute still exists in New York. However, this goes no further than income directly related to the crime.
Confiscation is therefore unjustifiable
through a legal lens as it is arbitrary and contrary to the rule of law, which
requires that convictions should only be made for crimes specifically laid down
by law, and that only the punishments provided by that law should be applied, a
requirement that is stated clearly in Article 7 of the European Convention on
Human Rights. A liberal society committed to the rule of law which aims both to
punish and rehabilitate, as far as possible, its worst offenders does not need
to shy away from harsh punishments, nor compromise its principles, but must
nevertheless act fairly and resist arbitrary retribution.
[i] Quoted in R Wacks, Philosophy of Law, a Very Short Introduction (OUP 2006) 28.
[ii] D Hunter, “Patronizing Handel, inventing audiences: the intersections of class, money, music, and history” (2000) Vol XXVIII/I Early Music 32-49.
[iii] C Hale et al., Criminology (OUP 2005).
[iv] M O’Brien and M Yar, Criminology. The Key Concepts, (Routledge 2008)