Punishment, Private Style
Copyright infringement is a widespread contemporary behaviour of commercial enterprises and private individuals. To restrain such infringements, legislators and courts have used punitive and statutory damages to sanction infringing activities and, in doing so, have incorporated the punitive aspects of criminal law into the private sphere without the procedural guarantees generally associated with criminal law. This chapter provides a detailed analysis of the courts’ decisions on statutory damages in the Canadian copyright context. The authors argue that such a punitive path is fundamentally based on utilitarian and behaviourist approaches. Based on social sciences scholarship, the authors question the effectiveness of such approaches to reduce copyright violations (deterrence). The authors also situate this process of private style punishment in a more general trend of asymmetric incorporation of criminal justice norms (Legomsky, 2007) and discuss the systemic incoherencies created by such practices.
João Velloso is a PhD candidate and part-time Professor at the Department of Criminology of the University of Ottawa (Canada). He is specialized in socio-legal studies and conflict resolution in comparative perspectives, combining approaches from Legal Anthropology, Criminology, and Sociology of Law. His research deals with Administrative Law-based forms of punishment and their relationships with Criminal Law. Recent articles include: “Beyond criminocentric dogmatism: Mapping institutional forms of punishment in contemporary societies,” Punishment and Society (2013, 2); and "Au-delà de la criminalisation: L’immigration et les enjeux pour la criminologie," Criminologie (2013, 1).
Mistrale Goudreau is Full Professor at the Civil Law Section of the University of Ottawa where she has been teaching since 1982. Her areas of teaching include intellectual property, law and technology, and statutory interpretation. In the past, Mistrale Goudreau has acted as the Assistant Dean for clinical and applied teaching and the Vice Dean of the Civil Law Section of the University of Ottawa. She is a member of the executive committee of the editorial board of Les cahiers de propriété intellectuelle. She has published numerous articles on copyright, unfair competition, legislative drafting, and legal theory. She recently authored a book entitled International Encyclopaedia of Laws: Intellectual Property Law in Canada, (Alphen aan den Rijn (Netherlands): Kluwer Law International, 2013).