• June 25, 2015
  • 18 Stan. Tech. L. Rev. 247
Eldar Haber

Copyright law undergoes a criminalization process. Since the birth of criminal copyright in the 19th century, there has been a substantial increase in criminal copyright legislation. Copyright criminalization could lead to a paradigm shift toward a criminal-oriented law. However, legislation alone is insufficient to change the perception of copyright to a criminal-oriented law, as italso depends on practice. Thus, if enforcement is sporadic and relatively low, an increase of criminal legislation in copyright law does not mark a paradigmatic change towards a criminal copyright perception. Analyzing statistical data regarding criminal copyright prosecutions reveals that criminal prosecutions are still relatively rare. Although the massive increase of criminal copyright legislation should have led to a higher scale of enforcement, the current reality is that criminal prosecutions are scant, leading to a criminal copyright gap between legislation and enforcement.

This Article introduces the criminal copyright gap. It reviews the legislative history of copyright criminalization since its birth in 1897, while dividing the process into two separate phases: The Low-Tech Phase that took place in the end of the 19th century, and the High-Tech Phase. The High-Tech Phase is further divided into two sub-phases: an analog phase, which occurred in the beginning of the 1970s and lasted until 1992, and a digital phase, which occurred in the beginning of 1992 and is ongoing.

After reviewing that history, I examine the practical aspects of copyright criminalization by analyzing statistical data on criminal copyright filings. I argue that statistical data reveal that the ongoing legislative process of copyright criminalization is not applied in practice, and thus I search for possible explanations of this criminal copyright gap. I opine that the criminal copyright gap leads to the conclusion that currently criminal copyright is not undergoing a paradigm shift. Finally, I conclude that although copyright law is not yet criminal-oriented, a paradigmatic shift toward a criminal copyright regime could occur in the near future, if enforcement of copyright infringements becomes more substantial.

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