Who wins when copyright and free speech clash?

The short answer is, I suppose, it depends on which courts you sue in. (This article at Torrent Freak shows what happened when the Pirate Bay claimed Free Speech rights; both the Swedish courts and the ECtHR ruled against them. If watching the Good Wife, you’ll believe that  free speech is a recognised defence for copyright infringement and monopolistic behaviour), however techdirt.com probably has a more accurate and less optimistic view as to the power of the First Amendment in the USA.

The first speaker in this session was Graham Smith, lawyer and author, who made a presentation, now available on slide share, which looked at the arrival of the right to free speech in the UK, a story which currently ends with the European Charter and the Human Rights Act. Graham has also posted his views, in a  blog article entitled “Ten ways in which copyright engages freedom of expression”. Since Freedom of Speech/Expression is a fundamental right, and copyright is not, you’d expect it to win. Graham explains that the basic right needs to be relevant to the case, and that the right has not been obviated by the terms of the copyright statutes. Also much of the European Charter has constraints on basic rights about permitting restrictions if necessary in a democratic society or for legitimate purposes. The law also requires that the resolution of conflict between the laws requires balance and the outcomes need to be proportional.

Confusingly there are two European Charter’s one belongs to the EU and the other is the founding charter of the Council of Europe, created and signed in the aftermath of the 2nd World War. The EU’s Lisbon Treaty commits the EU to subscribing to the European Council’s European Charter on Human Rights. At this point I assume the EU’s Charter of Fundamental Rights will be superseded. This is important because they’re different, possibly most importantly that unlike the European Charter and the UN Declaration, the EU’s Charter of Fundamental Rights includes copyright as a separate right to the property rights that the others two declarations contain. Interestingly the original ECHR did not include a right to property ownership.  Graham in his speech makes the point that the United Nations Universal Declaration has no legal standing in the democracy’s courts of law, which is why, in the UK, the Human Rights Act is so important; it is the parliamentary affirmation that the UK should be governed under the rules of the European Charter of Human Rights.

He then looked at what he sees as the critical precedents in the US, UK and EU where Free Speech and Copyright have conflicted. He argues that there are several tests for a free speech argument to succeed. One has to argue that Free Speech has been restricted, and then that the restriction is disproportionate, and that the restriction is illegal.

His list of rulings cut both ways, but he sees SABAM  vs. Scartlett as seminal; the EU Court of Justice ruled that fundamental rights must be balanced against each other. Neither Free Speech nor the Right to Property are absolute.  I reported on this here and in Graham’s words,

“…intellectual property rights are neither inviolable nor must be absolutely protected, but must be balanced against other fundamental rights including freedom of expression.”

Graham’s speech then looks at his ten dimensions of potential conflict. He presents this as a radar graph which is cute and furthermore creates a hierarchic taxonomy by grouping his ten axes into three supersets. These three supersets reflect the way and extent in which free speech conflicts with copyright, the role and thus who acts and thus whose rights to speech are deployed in defence of otherwise infringing actions, and finally the extent to which remedies create a chilling effect.

One of the court cases quoted in Graham’s lecture and blog article, comes from the Netherlands,  the Nadia Plesner Darfurnica case, which concerned Community design right rather than copyright. The artist portrayed a Louis Vuitton bag in her picture, Dafurnica, a polemic about the war and famine in Darfur, inspired by Picasso’s Guernica. She was sued for infringement and won. This case is an important victory for Article 10 rights and is an example where  politics comes before commerce.

It’s the last of these super sets, Remedies, that I want to end my summary on. In his, axis, Targeted to Scattergun, the ability to restrict access to infringing content without impacting non infringing content is measured. SABAM vs. Scarlett prohibits injunctions that risk the blocking of legal communication.  I suggest that the most extreme form of such an injunction is the disconnection of individual users.  Does this mean that the European legal precedent is that disconnection (or technical measures) is/are disproportionate? The UK’s Digital Economy Bill and the US “Voluntary Code of Practice” both plan that “repeat” infringers should be so penalized. The French Constitutional Court prohibited the first version of their Hadoopi laws due to a lack of judicial oversight to disconnections.

I have created a surl at is.gd for the blog, which also holds the slides. http://is.gd/P8gDpV.

The next speaker up, was Gabrielle Guillemin of Article 19. I had not heard of this organisation but it is a free speech/free expression international campaigning organisation named after the UN Universal Declaration of Human Rights Article establishing freedom of opinion and expression,

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Among their activities they publish a series of international standards or policy briefs, and Gabrielle spoke to the briefing “The Right to Share: Principles on Freedom of Expression and Copyright in the Digital Age”. Given we are used to a full on, no holds barred, Maximalist vs. Pirate row, with no quarter given, the balanced way in which Article 19 navigates these issues  is a revelation. They work by stating principles which permit a reasoned and balanced framework in which a resolution between the rights of consumer, creator and the societal nexus can be developed. While they start from the assumption that free speech and expression are fundamental, whereas property rights are qualified; we nearly all accept that governments acting on behalf of the people can tax property the Right to Share is built on top of decent reasonable statements of principle. Their story is almost more important than their conclusion.

I’d like to write a longer review of the Policy Brief; and I will, but it’s number three or four in my to do list.

During the lunch break, I visited their stall; they were one of the exhibitors, and picked up copies of their “The Right to Blog” and “Prohibiting incitement to discrimination, hostility or violence” which deals with the issue of when and how people can prohibit or criminalise hate speech. It’s this breadth of view, and the sympathetic way in which they represent the conflicts that may make them one of Free Speech’s strongest advocates.

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