Canada and the EU Secretly Negotiating One Strike Policy?

While CRIA may be struggling with its ability to maintain a moral standing on copyright infringement, ZeroPaid has learned that Canada and Europe is quietly negotiating their own copyright policy.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

The leaked document, known as the Canada/EU Comprehensive Economic and trade Agreement (CETA), appeared on Wikileaks just today and there’s some very noteworthy provisions held within this secret draft agreement. On pages 16 and 17, there’s the following passage:

The Parties shall ensure that the judicial authorities may, at the request of the applicant issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right, or to forbid, on a provisional basis and subject, where appropriate, to a recurring penalty payment where provided for by domestic law, the continuation of the alleged infringements of that right, or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the right holder. An interlocutory injunction may also be issued, under the same conditions, against an intermediary whose services are being used by a third party to infringe an intellectual property right.

Some may interpret this as making ISPs liable for content going over their networks which is rarely pushed in law for good reason. It’s unlikely ISPs in Canada would even dream of letting this fly. Luckily, there is a provision deeper in to the agreement (page 20) which says that as long as the “third party” does not partake in the transmission of copyright infringing material, then they are not liable for infringing activity. There is a section shortly afterwards which Wikileaks summarizes with the following:

It also covers aspects related to broadcast, where intermediates would be allowed to do temporary copies of works (caching) only when transmitting for “lawful uses” (art. 5.12). This could have the consequence of turning them into private police auxiliaries and would be adverse to the operations of sites like WikiLeaks.

While that is disturbing in and of itself, check out this passage on page 17:

The Parties shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement.

Where provided for by domestic law, non-compliance with an injunction shall, where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance. The Parties shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right.

Here’s a question: whatever happened to the so-called “three strikes” provision? Judging by this language, this is a one strike policy, not three. Judging by the paper here, disconnection on one accusation is the least of people’s worries. If it was a three strikes policy, wouldn’t this section say something along the lines of “on repeated infringements” rather than “finding an infringement”? On page 18:

The Parties shall ensure that when the judicial authorities set the damages: (a) they shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the right holder by the infringement ; or

(b) as an alternative to (a), they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question.

So the damages awarded to record labels during the Jammie Thomas case ($1.92 Million) and Joel Tenenbaum ($675,000) is now magically fine and dandy?

So exactly how far does this paper go anyway? Here’s a section, also on page 18, with relationship to judicial decisions:

The Parties shall ensure that, in legal proceedings instituted for infringement of an intellectual
property right, the judicial authorities may order, at the request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of the information concerning the decision, including displaying the decision and publishing it in full or in part. The Parties may provide for other additional publicity measures which are appropriate to the particular circumstances, including prominent advertising.

Since when can a party in a legal case decide what part of a court case can be published or not? Isn’t this contrary to the point of a legal justice system?

The wording, granted, is a little vague, but there’s grounds to believe that this could be a negotiation paper that would set in place a one strike policy in Canada and in Europe. The prospect that this could be what is going on is extremely disturbing.

Update: Michael Geist has just now posted his own commentary on the leak.

Drew Wilson on Twitter: @icecube85 and Google+.

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