Is Panama about to pass the worst copyright law in history?

In a Rogue’s Gallery of copyright legislation, many efforts deserve mention. The DMCA is surely there, together with Japan’s new copyright law, the Digital Economy Act, and Ley Sinde. But a new Panamanian copyright bill is giving those laws a run for their money.

The excellent project at have directed our attention to a new bill that has been sent to the Panamanian legislature by the executive branch. This is Proyecto 510-2012 (henceforth 510 Bill) for a new copyright and related rights law. At first glance, this looks like your average piece of copyright legislation: rights, exceptions, limitations, terms of protection, provisions on digital rights, etc. What makes the new law completely different to others I have seen is in the enforcement section. Most copyright law relies on the actions of the injured party to initiate legal proceedings in the shape of civil copyright infringement suits; usually there is room for some ex officio actions, such as criminal prosecution, customs seizures and so on and so forth. The 510 Bill gives new powers to an administrative branch of the Ministry of Commerce and Industry called the General Copyright Directorate (Dirección General de Derecho de Autor, henceforth DGDA). Unlike similar copyright administrative offices around the world, the DGDA will have the power to impose fines on infringers without prejudice of further criminal or civil actions. You read correctly, the DGDA will be able to initiate non-judicial actions on its own, or on behest of an injured party, and will be able to impose fines of up to $100,000 PAB (about $98,000 USD $100k USD). I do not know of any other copyright office with so much power. Art 157 reads (translation mine):

“Without prejudice to the civil and criminal penalties that apply, violations of the provisions of this Act or the Regulations the offender can be sanctioned administratively by the General Copyright Directorate, after a hearing, to a fine of one thousand balboas (B 1,000) to one hundred thousand balboas (B 100,000) according to the seriousness of the offence, and the publication of the relevant resolution at the expense of the offender.
To this end it shall notify the alleged perpetrator, summoning him submit evidence in his defence to within fifteen (15) days. In case of re-offending, which is regarded as being the repetition of an act of the same nature within a period of one (1) year, the fine imposed may be doubled.
In case of minor offences particularly, the financial penalty may be reduced to a minimum of five hundred balboas (500.00), without the publication of the resolution at the expense of the offender.
To the extent applicable, it may order any civil action on the merits of the case as a result of any administrative procedure.”

In other words, the DGDA has the power to unilaterally haul any alleged infringer, ask them to mount a defence within 15 days, impose fines of up to $100k USD ($200k for re-offenders), and on top of that this person may still have another civil case against them added to the administrative fine. Adding insult to injury, they also have to pay for the publication of the fine so that everyone knows what a nasty pirate they are.

The above is bad enough, but what really makes this law unique is the fact that the fine does not go to the copyright owner, which is why the administrative action does not preclude future civil proceedings. The money goes to the DGDA and its employees! Art. 153 reads:

“The funds accrued by the General Copyright Directorate from the fees for the services it provides and the fines imposed in the exercise of its powers, will be aimed at improving its operational infrastructure and to boost the performance of its officers, complementary to the funds that the State Budget reserves for the operation of the entity[…].
The amounts corresponding to each official, shall not exceed fifty percent (50%) of the total basic salary monthly remuneration.

So the law gives unprecedented powers to impose harsh administrative fines on infringers on top of possible future civil litigation, and the money obtained goes to the entity and the employees that acts as judge and jury on the imposition of those fines. This is an incentive to hunt down and fine everyone, with an added incentive to find re-offenders, as you double your earnings.

This is what I think will happen if the law passes as it stands. The DGDA will immediately try to monitor all torrent use in Panama, be it legitimate or not, and all people identified with IP addresses will be summoned and summarily fined. After all, the institution and its employees will have a direct financial incentive to assume guilt. Then those same people will be sent again and again, as there will be clear incentive to fine re-offenders.

This is a toxic piece of legislation any way you look at it, and we urge the Panamanian Congress to modify Chapter I of Title XII, or to remove it altogether.

Comments 38

  1. Interesting article, and one to think about. But as a Panamanian lawyer (and a national too), I must remind you that the Panamanian balboa (PAB) is paired by monetary treaties dating back to 1904 with the US dollar, so if you say US$10.00, it's PAB 10.00. The only difference is that some things are cheaper down here!

  2. Hi
    I read the Bill and it is even worse. Take for example Article I. "El derecho de autor es independiente y compatible con los derechos de propiedad industrial que puedan existir sobre la obra." WTF does "Industrial Property (sic) Rights" have to do with Copyright? They are almost coflating two different issues like mixing patent law with copyright law and giving birth to the worse of the combination.
    Another even worse example, Article 10: "Se considera creada la obra, independientemente de su divulgación o publicación, por el solo hecho de la realización del pensamiento del autor, aunque la obra sea inconclusa." A work is consideted "created", regardless of divulgation or publication, just by the Author thinking about it even if it is incomplete. In other words, Panama is giving copyrigth to IDEAS, instead of the fixed work. Isn't it great?

    1. Cool, so my defence when some official claims that Lady GaGa track I uploaded is that "I thought of it first, the bitch must have read my mind, but really officer, I'm the original rights holder of Bad Romance". It's time the MPAA/RIAA etc were declared international terrorists.

  3. Here we go: DMCA!
    Art. 182 and Art. 183
    Artículo 182. Se adiciona el artículo 266-A al Código Penal que queda así:
    "Articulo 266-A.- Quien sin autorízación, con el fin de lograr una ventaja comercial o ganancia financiera privada, evada sin autorización cualquier medida tecnológica que controle el acceso a una obra, interpretación, ejecución o fonograma protegido, será sancionado con prisión de uno (1) a tres (3) años".

    Artículo 183. Se adiciona el artículo 266-B al Código Penal que queda así:
    "Artículo 266-B.- Se impondrá la pena de dos (2) a cuatro (4) años de prisión quien fabrique, importe, distribuya, ofrezca al público, proporcione o de otra manera trafique dispositivos, productos, o componentes, u ofrezca al público o proporcione servicios, los cuales:
    a) son promocionados, pub licitados, o comercializados con el propósito de evadir una medida tecnológica efectiva, o
    b) únicamente tienen un limitado propósito o uso de importancia comercial diferente al de evadir una medida tecnológica efectiva; o
    c) son diseñados, producidos o ejecutados principalmente con el fin de pennitir o
    facilitar la evasión de cualquier medida tecnológica efectiva.

    Guilty for using Linux to evade CSS and watch peacefully my legally acquire DVD collection.

  4. […] [originally posted on the Access blog by Perter Micek under a Creative Commons Attribution license (CC-NY)]  The Panamanian Congress recently passed a dangerous copyright bill, and it is one step away from becoming law. That’s why civil society organizations from around the world have rallied to urge President Ricardo Martinelli to reject the legislation, send it back to Congress, and allow experts and civil society members to be involved in the process. The bill has caused a huge uproar around the world, including one report calling it “the worst copyright bill in history.” […]

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