[acqq]

"Article QQ.H.7: {Criminal Procedures and Penalties}"

"Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. In respect of willful copyright or related rights piracy, “on a commercial scale” includes at least:"

"(b) significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace 135,136."

"135 It is understood that a Party may comply with subparagraph (b) by addressing such significant acts under its criminal procedures and penalties for non-authorized uses of protected works, performances and phonograms" (All emphasis Ed.) "in its domestic law."

Does it mean the law is going to be:

Sing a song on the birthday party, don't pay the copyright => you are a criminal?

What are actually the "significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace"?

[hammock]

An interesting discussion: http://www.justinhughes.net/IPSC2009/pdf/Saw-Cheng.pdf

According to that paper, such language isn't new. Australia (Copyright Act 1968), Singapore (Copyright Act 1987), and the US (Copyright Act 1976 as amended by No Electronic Theft Act 1997) provide criminal penalties for prejudicial infringements even though they may not result in financial gain or commercial advantage.

Compare the UK (CDPA 1988) and the EU (IPRED2 2005), which generally exempt non-commercial infringements from criminal liability.

[sp332]

It does say "on a commercial scale", so it has to be big. However, I think using bittorrent counts since you are offering to upload the file to anyone on the internet who asks for it. Just singing it at a single private party wouldn't be included, but a restaurant chain singing it for every birthday party would.

Not sure what "prejudicial impact" means, but it's probably something that would keep people from buying the copyrighted version.

[bediger4000]

so it has to be big

I think you're putting too much faith in the usual meaning of words. Think about the wording of the US Constitution's 2nd Amendment (or 4th Amendment) and how different the legal meaning is from what someone who isn't a lawyer would expect.

I bet that "commercial scale" is "at least on the scale of that guy selling knock-off Nikes out the back of his van" after we make it through the courts.

[pluma]

Technically, "commercial scale" can mean anything from "someone somehow made money while doing it" (e.g. from ads to pay for hosting) all the way to "how someone doing it for money might do it" (e.g. using a proxy or fake contact details). It's intentionally vague.

[sp332]

This section specifically says "not carried out for commercial advantage or financial gain", so it doesn't apply to people who actually make money from this. I don't know what section that's covered in though.

[zardo]

Commerce happens on all scales, therefore "commercial scale" could apply at all scales.

[ISL]

When the the practical implementation of a law does not align with the meaning of the words in the law, we all lose.

This is doubly so with a proposed law, where the implementation can easily change to reflect what the words do mean.

[Lawtonfogle]

"Shall not be infringed"

Here, pay this money, register here, sign this, don't do that, pay this other fee, and if you do this other thing, you will go to prison. Also, options C through Z are banned, only options A and B are allowed. But we don't consider this infringing a basic right.

Basically, if voting rights were treated like gun rights, Jim Crow era discrimination would pale in comparison.

I full expect the government to twist the wording of this law as well.

[btown]

QQ.H.7(1)(b) would seem to be in place to cover large-scale file sharing that is not done for commercial gain.

At least we have this referring to (b):

> 136 A Party may provide that the volume and value of any infringing items may be taken into account in determining whether the act has a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace.

So if your lawmakers are sane (...) you're likely safe singing Happy Birthday.

The true problem with (a) comes in regards to fan-made works that are not clearly reviews or parodies, and are thus not under international standards of fair use.

For instance, there's Japan's dojinshi market, valued at US$588mm/yr, in which it is common for creators of astonishingly professional-quality arrangements of copyrighted video game/anime music (among other things) to charge money for limited runs of physical albums. There's no doubt that allowing this to be commercial allows higher-quality productions to be made, and more people to use this as a way to practice their creative skills... this is true of any creative industry.

There's a real fear that Japan's hand may be forced, if they accept the TPP, to criminalize and prosecute this marketplace, even though right now it is considered a crime that can only be prosecuted if the victim files charges. For if they don't make and enforce such a law, they'd be in violation of the broader treaty.

For more context, see: https://www.animenewsnetwork.com/interest/2015-05-21/japanes...

And lest we think this is limited to Japan, consider that any unlicensed cover bands that charge for gigs anywhere in the world, or sell a demo CD, would be considered criminals. And minimum sentencing does indeed exist in the United States...

(IANAL)

[walterbell]

In Part 6 of that section:

  (a) penalties that include sentences of imprisonment as 
      well as monetary fines sufficiently high to provide 
      a deterrent to future acts of infringement, 
      consistently with the level of penalties applied 
      for crimes of a corresponding gravity

  (g) that its competent authorities may act upon their own      
      initiative to initiate a legal action without the need 
      for a formal complaint by a private party or right holder

[tedunangst]

It doesn't specify what the penalty must be, however (does it?). For example, US Code, in the criminal section (506) it says:

    (d) Fraudulent Removal of Copyright Notice. — 
    Any person who, with fraudulent intent, removes or
    alters any notice of copyright appearing on a copy
    of a copyrighted work shall be fined not more than $2,500.

They could make singing the wrong song a $20 penalty and presumably still comply with the treaty.

[Lawtonfogle]

Consider how bad the sex offenders registry is. Now consider that that isn't even a criminal punishment (which is why it can be retroactively applied and extended, which a criminal punishment cannot be).

So it could work out to a nothing fine and all is well, but I would highly doubt it ending up as such.

[tehmaco]

A $20 fine and a criminal record, which as I understand it is something you _really_ don't want.

[tedunangst]

You don't want a felony record, but there are classes below that, including "infraction" which for the most part doesn't count.

[walterbell]

In New Zealand, http://www.stuff.co.nz/business/industries/72854916/sky-tv-i...

"Internet users and Sky Television want to know if it will become a criminal offence to get around blocks on overseas online television services ... not sure whether that meant criminal penalties for people who used Virtual Private Networks (VPNs) to disguise their location and access online services that were supposed to be "geo-blocked" in New Zealand, such as the US version of Netflix.

Legal experts have said it is a grey area whether the use of anti-geo-blocking services to access overseas TV services currently breached civil law. Sources said the answer to that question could determine whether the Government might be empowered to make an exemption relating to VPNs, or whether their use to access overseas online television services would now need to become a criminal offence."

[fiatpandas]

Only thing I can think of is operating a website that allows the uploading and sharing of copyrighted material with no protection or discretion (Mega*). Or creating something like a Napster, or a Grooveshark, maybe.

[ljk]

Seems like it's intentionally written to be vague to be applied to many things