{"id":78,"date":"2020-08-12T15:07:49","date_gmt":"2020-08-12T14:07:49","guid":{"rendered":"https:\/\/blogs.ncl.ac.uk\/nelrn\/?p=78"},"modified":"2020-08-19T12:15:41","modified_gmt":"2020-08-19T11:15:41","slug":"confiscation-of-performers-royalties-in-criminal-cases-specifically-sexual-offences","status":"publish","type":"post","link":"https:\/\/blogs.ncl.ac.uk\/nelrn\/2020\/08\/12\/confiscation-of-performers-royalties-in-criminal-cases-specifically-sexual-offences\/","title":{"rendered":"Confiscation of performers\u2019 royalties in criminal cases, specifically sexual offences"},"content":{"rendered":"\n

DAMIAN BEASLEY-SUFFOLK <\/h3>\n\n\n\n
\"\"<\/figure><\/div>\n\n\n\n

While the heinous crimes of\nformer glam rock star Gary Glitter are forever etched into the public\nconsciousness, the proposal for well-known musicians convicted of sex offences\nto have their royalties\nearned from the use of their creative works confiscated<\/a> (in addition to\ntheir statutory punishments) is difficult to justify from a legal perspective. In\nsuch notorious cases, there is a need to: (i) maintain the rule of law, (ii) resist\n\u201cangry mob\u201d cries for retribution, (iii) prevent judgments and punishments\nwhich Jeremy Bentham called \u201cprivate opinion in disguise\u201d or \u201cthe mere opinion\nof men self-constituted into legislature\u201d when railing against the common law\nin general,[i]<\/a>\nand (iv) maintain predictability and uniformity of the application of law. This\npost will set out the essential nature of the Intellectual Property (IP) rights\nassociated with creative artistic works, followed by a short discussion of the\npunishment regime for sexual offences in England and Wales to conclude that the\nproposal to confiscate royalties is not justifiable on legal grounds. <\/p>\n\n\n\n

Music and the introduction of personal IP rights<\/h2>\n\n\n\n

IP rights are a means for\nindividuals to make a living from their work. While artisans and craftspeople\ncan make a living by selling their specialised products or manual skills (which\nare not easily copied), those whose living is made by using their skills to\nproduce ideas or creative works such as music and literature which others find\nvalue in (such as authors and songwriters) suffer in that their work is often easily\ncopied. Copyright \u2013 the right of an author to prohibit another from profiting\nfrom their work \u2013 is a means for enabling the author to make a living from\ntheir original work.<\/p>\n\n\n\n

A very early reference to personal\nIP rights comes from Ancient Greece. A law stated that if a cook came up with a\nrecipe for his restaurant, nobody else was permitted to prepare that dish for a\nyear, allowing the cook to make an income from his skill and creativity.<\/p>\n\n\n\n

Early composers, on the other\nhand, had to make private petitions to their monarch for protection of their\nwork. Lully in France enjoyed the Privil<\/em>\u00e8ge du Roi<\/em>, an exclusive\nauthorisation to print a work, granted by an authority (namely, the King). Both\nLully and, years later, his great admirer Handel in England received Letters\nPatent, which provided both with exclusive licenses to sell and profit from\ntheir music. Handel was an impresario \u2013 his oratorios, although mainly on\nbiblical themes, were often first presented in theatres.[ii]<\/a>  Putting on performances and selling copies of\nthe sheet music was his living, and had the advantage (as with Lully and other\ncomposers) of not having to rely on patrons. More importantly, these exclusive\nlicences allowed composers to prevent others from making copies of their works,\nselling them, and keeping the proceeds, thereby denying the composers of that\nincome.<\/p>\n\n\n\n

In England, this ad hoc<\/em>\nprivate approach was replaced by the Statute\nof Anne<\/a>, known as the Copyright Act 1710, \u201cto prevent printing by third parties\nwithout the\nconsent of the authors or proprietors of such books and writings, to their very\ngreat detriment, and too often to the ruin of them and their families.\u201d<\/em>\nThe principle is that artists may profit from their creative labour just\nas any other worker, if people find value or enjoyment in it.<\/p>\n\n\n\n

Modern creative rights evolved\nfrom this principle, and are found in the Copyright, Designs\nand Patents Act 1988<\/a>.  Broadly\nspeaking, as there are some variations, this gives composers<\/em> of musical\nworks a copyright duration from the creation of the work extending to 70 years\nafter the end of the year of their death (s.12<\/a>), and performers<\/em>\na copyright over their recorded performance of 50 years from release of the\nrecording (s.13). This takes into account the fact that creative people rarely\nhave any regular salary. Being property rights, their benefit may be passed on\nto inheritors after the death of the owner, or disposed of according to their\nwill.<\/p>\n\n\n\n

Why the call for additional punishments?<\/h2>\n\n\n\n

Gary Glitter is notorious, but\nnot unique, as a high-profile musician convicted of crimes which are now\ncovered by the Sexual\nOffences Act 2003<\/a> (Ian Watkins, the disgraced former lead singer of\nLostprophets, is another example). The Act sets out the punishments to be\napplied for each offence it includes, usually a term of imprisonment. <\/p>\n\n\n\n

Hale et al., discuss the idea of\na \u201cFolk Devil\u201d, as \u201c\u2026 those figures in society we are encouraged to dislike\nand avoid, e.g., child sex offenders (also, in history, football hooligans, \u2026).\nThe target can change. The paedophile is the folk devil of our times.\u201d<\/em> [iii]<\/a>O\u2019Brien, defining sex crimes and, in particular, those involving children, describes the concept of moral\npanic as an exaggerated public outcry, based on little or no evidence and\nthereby missing the main point of such offences mostly being committed by close\nfamily members or friends.[iv]<\/a>\n Though this does not diminish the severity of\nthe crime, it may lead to \u201cangry mob\u201d-like reactions which may cause more harm\nthan good. An offender for whom there may be a hope and capability of\nrehabilitation may, if it appears that all of the rights to their works are to\nbe confiscated along with their potential to earn a livelihood, simply give up,\nundermining any efforts at re-integrating them into society, and may increase\nthe risk of recidivism. This sounds like a harsh judgment of people who make up\n\u201cangry mobs\u201d, but serious mistakes\nhave been made<\/a>.<\/p>\n\n\n\n

Parliament sets out specific\npunishments for specific crimes. There is also a statutory sentencing framework\nsince 1991, and now in the Criminal Justice\nAct 2003<\/a>, so judges do not have unfettered discretion in imposing a\nsentence \u2013 i.e. they may not act arbitrarily. Under Article 7 of the Human Rights Act\n1998<\/a>, a heavier penalty than the one which was applicable at the time the\ncriminal offence was committed shall not be imposed. Any punishment beyond\nthis, or one that is not specified by the law is therefore arbitrary, and\nconsequently contrary to the rule of law. The application of criminal law\nconfines itself strictly to the offence(s) concerned, and punishment is\nprescriptive with relatively limited scope for variation, with the intention\nthat it is appropriate and severe enough for the offence.<\/p>\n\n\n\n

This is a specific case in which\nIP, criminal law and, to an extent, criminology combine in an unusual manner.<\/p>\n\n\n\n

In such cases, confiscation of\nfuture IP rights from someone convicted of an unrelated offence is\nimpermissible because this is not prescribed in the relevant statute. Further, it\nis not the case that the royalties which a convicted musician in the present\ncontext collects for their existing work are proceeds of crime, which under the\nProceeds of Crime Act 2002<\/a>\ncould be confiscated.  The 2002 Act\nrefers only to assets acquired as the result of unlawful activity; income and\nassets lawfully acquired during their everyday occupations are not covered by\nthe act. Similarly, in some US states, so-called \u201cSon of Sam\u201d laws have been\nenacted which seek to prevent convicted felons from profiting from their crimes\nby selling their stories or otherwise benefiting from publicity due to their\ncriminal notoriety. These laws have often been struck down as infringing First\nAmendment rights to freedom of speech under the US Constitution, though an amended\nstatute still\nexists in New York<\/a>. However, this goes no further than income directly\nrelated to the crime. <\/p>\n\n\n\n

Confiscation is therefore unjustifiable\nthrough a legal lens as it is arbitrary and contrary to the rule of law, which\nrequires that convictions should only be made for crimes specifically laid down\nby law, and that only the punishments provided by that law should be applied, a\nrequirement that is stated clearly in Article 7 of the European Convention on\nHuman Rights. A liberal society committed to the rule of law which aims both to\npunish and rehabilitate, as far as possible, its worst offenders does not need\nto shy away from harsh punishments, nor compromise its principles, but must\nnevertheless act fairly and resist arbitrary retribution.
<\/p>\n\n\n\n

\n\n\n\n

[i]<\/a>\nQuoted in R Wacks, Philosophy of Law, a Very Short Introduction <\/em>(OUP\n2006) 28.<\/p>\n\n\n\n

[ii]<\/a> D Hunter,\n\u201cPatronizing Handel, inventing audiences: the intersections of class, money,\nmusic, and history\u201d (2000) Vol XXVIII\/I Early Music 32-49.<\/p>\n\n\n\n

[iii]<\/a> C Hale et al., Criminology\n<\/em>(OUP 2005). <\/p>\n\n\n\n

[iv]<\/a> M O\u2019Brien\nand M Yar, Criminology. The Key Concepts<\/em>, (Routledge 2008)<\/p>\n\n\n\n

Damian Beasley-Suffolk is a PhD student at Newcastle Law School, Newcastle University. <\/h3>\n\n\n\n
\n","protected":false},"excerpt":{"rendered":"

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 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3730,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-78","post","type-post","status-publish","format-standard","hentry","category-uncategorised"],"_links":{"self":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/78","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/users\/3730"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/comments?post=78"}],"version-history":[{"count":5,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/78\/revisions"}],"predecessor-version":[{"id":96,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/78\/revisions\/96"}],"wp:attachment":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/media?parent=78"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/categories?post=78"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/tags?post=78"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}