EU: Judicial Review Central to Telecom Disconnects

elpalaciodejusticiaI’m perhaps a bit idealistic, but I think that there are clear contemporary demonstrations of democracy ‘working’. Today’s example comes to us from Europe, where the European Parliament has voted to restore a graduated response to copyright infringement that pertains to when and how individuals can be disconnected from the Internet. Disconnecting individuals from the ‘net, given its important role in citizens’ daily lives, can only be done with judicial oversight; copyright holders and ISPs alone cannot conspire to remove file sharers. This suggests that any three-strike policy in the EU will require judicial oversight, and threatens to radically reform how the copyright industry can influence ISPs.

What might this mean for North America? If policy learning occurs, will we see imports of an EU-style law on this matter? Do we want our policy actors to adopt an EU-model, which could be used to implement a three-strike rule that just includes judicial review at the third strike? In Canada, with the tariffs that we pay, there are already permissible conditions for file sharing – do we really want to see strong American or WIPO copyright legally enforced on our soil?

What would a discussion in Canada and the US look like? In Canada, I really don’t know – I guess it will depend on the stance that copyright reform advocates like Michael Geist and Russell McOrmond adopt, and on how much political leverage the CIRA can apply. In the US, I don’t know what might happen. Consumer groups have been relatively impotent with the copyright infringement discussion – they’ve had lots of good things to say, but I don’t know how effective their work has actually been – and thus I wonder if they wouldn’t thus be motivated to spin a three-strike rule as a network neutrality and privacy issue. Would this be an effective strategy? Would some other group crop up to influence the FCC?  I’m not sure. Still, it will be interesting to watch over the next months and years to see whether or not other jurisdictions actually engage in policy learning, or policy transfer, or if they are unable/unwilling to do so because of their current policy directions. Who knows – maybe we’ll actually see some policy innovation on the issue in North America. It would be great to see authentic policy-making in Canada, at least, that progressively engaged with file sharing and copyright in a measured fashion, though I’m admittedly doubtful that this will occur anytime soon. Still, the EU offers hope that democracy and better (not necessarily ‘good’) sense can sometimes prevail!