Internet offender pays the price but is it too high?

The world's first prosecution and conviction of a BitTorrent user for illegally distributing movies on the internet underlines the government's determination to protect intellectual property in Hong Kong.

Yesterday that message was reinforced when the offender was jailed for three months, although released on bail pending appeal.

The criminal conviction of Chan Nai-ming was based on the finding that he had distributed copyright material on the internet, as opposed to merely making it available. But there was no suggestion he had profited from his actions.

The court's finding that the criminal law could be used in such circumstances is a landmark, and the conviction sends an important message to the community. The internet may have brought freedom of communication and information to people from all corners of the world but it does not put them beyond the law. The BitTorrent technology enables PC users to exchange files directly over the internet. Illegal use of it is difficult to police. Music and film companies claim it is costing them billions of dollars a year.

It is not surprising that the prosecution aroused worldwide interest. But it is the penalty imposed on Chan that will concentrate people's attention now.

The offence carries a maximum penalty of four years. But in the circumstances of this case, the three-month jail term is a tough - some might say harsh - penalty. After all, Chan did not have previous convictions, and this was the first case of its kind. The magistrate explicitly discarded the more lenient options of a suspended sentence or community service. There were grounds for either if he had chosen them. Chan had been assessed as suitable for community service and a suspended sentence would still have carried the deterrence of a criminal record.

The magistrate said the courts had to send out a tough message, and noted that the use of the internet to infringe copyright was difficult to control except by deterrence. He warned that future offenders might face even stiffer sentences.

However, Chan's penalty will revive argument over whether the government should have become involved, making the matter a criminal rather than civil case. It is to the administration's credit that it has not shirked the difficult task of applying copyright law to the internet. Chan's appeal should, however, be welcomed as it will give the Court of First Instance an opportunity to consider the law and further clarify the legal position.

The case has made it clear that breaching of intellectual property rights on the internet can result in imprisonment. But there is a need for the public to be made well aware of what is permitted and what is not. Education should be stepped up. This should help increase awareness of the value of intellectual property, and the likely consequences of breaching the relevant laws.