European Court Of Human Rights: No, Copyright Does Not Automatically Trump Freedom Of Expression
from the well,-that's-a-relief dept
As many know, copyright had its origins in censorship and control. But over the last few hundred years, that fact has been obscured by the rise of the powerful publishing industry and the great works it has helped bring to the public. More recently, though, laws and treaties like SOPA and ACTA have represented a return to the roots of copyright, posing very real threats to what can be said online. That's not because their intent was necessarily to crimp freedom of expression, but as a knock-on effect of turning risk-averse ISPs into the copyright industry's private police force.
And so there's a growing tension between copyright law that seeks to limit unauthorized use of works on the one hand, and freedom of expression that aims to allow the maximum scope for creativity on the other. The question then becomes: which should have precedence when they clash? The European Court of Human Rights was asked just this question, and came up with the following important ruling:
For the first time in a judgment on the merits, the European Court of Human Rights has clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention [on Human Rights]. Such interference must be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the Convention. This means that a conviction or any other judicial decision based on copyright law, restricting a person's or an organisation's freedom of expression, must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by law and pursuing a legitimate aim.
However, it's worth noting that the same blog post points out:
Due to the important wide margin of appreciation available to the national authorities in this particular case, the impact of Article 10 however is very modest and minimal.
That's because there are many other factors that will need to be taken in to account for particular cases, as the rest of the blog post goes on to explore at some length. For example, one issue is whether the copyright infringement in question was for commercial or non-commercial purposes: the latter would be likely to benefit from the current ruling, while the former probably would not. Nonetheless, an important principle has been enunciated by a senior European court -- one that both reflects the evolving views on this subject, and that is also likely to help shape future decisions in this contested area.
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Filed Under: censorship, copyright, europe, free speech
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Ahem. Good rulings, sanity prevails. Now onto the next battle, shall we?
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Re:
1 billion dollars in tax breaks this year?
...
Seriously? They need 1 billion dollars from tax payers after making over 12 billion last year?
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You can't expect an industry that's making that sort of money to even hope to be profitable unless it has massive tax breaks. That would be expecting them to have some sort of business savvy.
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/s
FTFY
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Uh, freedom of expression has nothing to do with copyright
It cracks me up to watch the lazy-ass couch potatoes around here pass the time as the torrents download coming up with looney claims that they are somehow expressing themselves by posting a torrent link.
Nope. The film maker expressed him or herself. The actors expressed themselves. The screen writer did it. But posting a URL to someone's pirated film is not a form of expression.
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No, copyright did *not* have its roots in censorship
As the linked article clearly states, systems of censorship existed before copyright law, but "The Statute of Anne [the first copyright law] ended the old system whereby only literature that met the censorship standards administered by the booksellers could appear in print." (emphasis added)
In other words, copyright was not a system of censorship; it was a system that did away with it! If you want to know what it was really about, look at the preamble to the Statute of Anne:
The language may be a bit archaic, but even so it's written in utter clarity. When the old censorship regime ended, printers started publishing whatever they wanted, just because they could, with no compensation to the authors. When this became a big enough problem, Parliament came up with a law to put a stop to it by giving authors the right to control the publication of their works.
This is a much more powerful narrative, and it has the additional advantage of being true: copyright was created for the explicit purpose of preventing publishers from using expensive modern technology to exploit and abuse people!
Why is this a more powerful narrative? Because the DMCA was created for the explicit purpose of enabling publishers to use expensive modern technology to exploit and abuse people. If we try and tell people "oh, copyright is an evil tool of censorship and we need to do away with it," no one will listen, because it's silly. But if we say "copyright was created for a good purpose, but it's been twisted 180 degrees and today serves to do the exact opposite of what it was intended for," that makes sense. It resonates with people. We see examples of that all the time in the world around us.
So can we please drop the tired old lie already?
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Re: Uh, freedom of expression has nothing to do with copyright
Now, they can just repeat it word for word.
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Re: Uh, freedom of expression has nothing to do with copyright
Arguably, it is, but since you have used an example of something that is not a copyright violation (posting a URL is not copying anything), I am not sure what you are trying to point out.
Copyright can strangle expression pretty easily. Is a remix not a form of expression? What about including an image of a part of a cartoon in a discussion board talking about it? Did Disney not "express" themselves when they produced cartoons retelling public domain stories?
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Re: Uh, freedom of expression has nothing to do with copyright
What a monumental bell end.
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Fair use and non comercial use.
Non commercial use is important for sharing and is why some countries allow the downloading of copyright material but not the uploading of it. Once the courts realsie that sharing is caring and that sharing is a human right then copyright can be changed just to affect the people in big business making massive profits from artists creations.
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Re: No, copyright did *not* have its roots in censorship
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Re: Uh, freedom of expression has nothing to do with copyright
Which takes us to the EU decision...
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Re: No, copyright did *not* have its roots in censorship
But if we say "copyright was created for a good purpose, but it's been twisted 180 degrees and today serves to do the exact opposite of what it was intended for," that makes sense. It resonates with people. We see examples of that all the time in the world around us.
I totally agree. However we must not forget that copyright would never see the light of day if not for the push of the powerful industries earlier in history.
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Re: No, copyright did *not* have its roots in censorship
I'll admit that simply stating that copyright began as a censorship system is an oversimpifcation - but it is not a lie.
Firstly, copyright existed before the statute of Anne - and as such it was at least partly motivated by censorship. Certainly when the stationers company applied for the renewal of their privileges in the 1640s they offered censorship as one benefit of such renewal.
In fact it seems that all the way through the early history, from the granting of the stationers' charter to the statute of Anne the stationers operated a censorship mechanism as part of their internal copyright system. To be fair however it is also true that the state seldom made direct use of what the stationers' company offered.
Nonetheless it is also fair to say that in the early days the stationers used censorship as a selling point for their (copyright) monopoly.
By the 1690s however, when the state had allowed their monopoly to expire (and yes there was a short period between 1688 and 1710 when no copyright existed in Britain and authors still got paid) the stationers changed their tune and began to sell the idea of copyright for the benefit of the "poor starving author" (a theme which you will still see today - although the author may be replaced by a corn farmer!).
Your quote "Whereas Printers, Booksellers, and other
Persons, have of late frequently taken..." is simply an extract from the stationers publicity material and bears as much relation to reality as the accounts of "Avatar".
The reality is this.
There exists (and has existed since the mid 16th century) a commercial cartel that benefits from the restrictions on copying that began as the stationers' charter and now exists in the form of copyright. This group has consistently lobbied for the retention, extension and expansion of these restrictions and is prepared to use whatever argument chimes with the mores of the day. In the political climate of the 16th and early 17th centuries censorship was a good line to pursue, later the well being of authors was better for them. However this has never been anything more than lobbying. Their real interest has always been self interest. So it may be that censorship was never the real motivation for copyright - but then the authors' well being never was either!
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Re: Re: No, copyright did *not* have its roots in censorship
I think some politicians of liberal (the real liberal!) and left-leaning observance are starting to see this in several countries, which is why copyright law is not getting pushed as hard. ACTA pushed all but the conservative european politicians away from the neo-protectionism of copyright. Now we only need to spread the understanding far enough to the right that the american far left starts to catch it!
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Re: No, copyright did *not* have its roots in censorship
You are attempting to redefine "copyright" so narrowly that it excludes the evidence that contradicts your predetermined conclusion. The Statue of Anne was a major revision of copyright law; it was by no means the first copyright law.
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Re: Re: Uh, freedom of expression has nothing to do with copyright
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Re: No, copyright did *not* have its roots in censorship
We'll drop the tired old lie when it stops being a lie.
When the old censorship regime died along with the Stationer's Company monopoly in the late 1600's, printing and reading and knowledge experienced a massive renaissance: and authors still got paid. They did not get paid for every use, just as they did not get paid for every use in America even after the Statute was enacted, but writing was in no way in danger. Instead, the monopolists whose (incredibly lucrative) regime had ended were the ones at risk, and accordingly they reframed their concerns into a new format with which they could regain a large part of their lost control.
It worked.
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Re: Re: No, copyright did *not* have its roots in censorship
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Re: Uh, freedom of expression has nothing to do with copyright
Bob laughs at his own jokes, the news at 11.
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Re: Re: Re: No, copyright did *not* have its roots in censorship
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Re: Uh, freedom of expression has nothing to do with copyright
Enjoy the silence. I know we will.
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Re: Re: Re: No, copyright did *not* have its roots in censorship
The stationers already called their internal system copyright and operated it in a way that provided a censorship function. This is not a point of debate - even the present day stationers company admit that this was the case and call the system that operated in the 16th and 17th centuries "copyright" If you don't believe me you can look at their own website.
As in all good business, there was something in it for both sides: the Crown and The Stationers’ Company. While the Company feared the opportunity for piracy that mass production offered, the Charter, in effect, provided the Crown with an agent, as Mary realised that previous attempts to impose royal control on every new publication had failed. The Company was expected to find a way to stem the constant flow of seditious and heretical books.
and
from the 1560s, therefore, a form of copyright could be secured by two methods: by royal Letters Patent; or by our Guild rule that made it an offence not to present to the Wardens – to put on record, as in the text ‘Entered at Stationers’ Hall’ – every publication not protected by royal privilege.
If even the stationers themselves admit it who are you to deny it?
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Re: No, copyright did *not* have its roots in censorship
Oh, it's quite true. Originally there was a copyright (ie a right to prohibit others from printing copies) which was vested IIRC in whichever member of the Stationers' guild claimed the work first. The author was not consulted, had no rights, and need not have been paid. Of course, the printer needed to have a manuscript or something to work from, for which an author might be paid, but which could just as easily, depending on how widely the work had already circulated, be gotten by other means. For example, one printer who published a copy of Hamlet may have hired someone with a good memory (likely an actor who had had some small parts) to dictate it, as a way of getting a copy. (The resulting Q1 soliloquy is hilarious)
Eventually this system of copyright -- which the crown had liked, for censorship purposes, and which publishers had liked for monopoly purposes -- fell apart and was replaced with a new system of copyright in which rights did vest in the author.
Both are valid copyright laws -- there's nothing about copyright that demands that it must vest in an author to justify being called copyright. That's just an important feature that we've made into a legal requirement since.
It's a bit like early patent laws, which could grant patents to inventors, to people who didn't invent anything but did import the technology to the jurisdiction granting the patent, or just to well-connected people who wanted a monopoly on playing cards or something.
In other words, copyright was not a system of censorship; it was a system that did away with it
Not really. It just separated publishing from censorship. Even today the people that rate films in the UK are the British Board of Film Classification (formerly that C was for Censors) and they do have the power AFAIK to ban films from being publicly shown or sold there. Speech is a lot freer now than in most of the past, but censors of one sort or another still try to control what others can do.
Even authorial copyright is a system of censorship. The judgement of whether to censor is given to the copyright holder, who may exercise it for commercial reasons rather than artistic or social sensibilities. But it's backed by the power of the state and the distinction matters little to those who run afoul of it.
copyright was created for the explicit purpose of preventing publishers from using expensive modern technology to exploit and abuse people!
Setting aside for a moment that publishers frequently hold enough of a copyright to make the decision of whether to wield it or not on their own, without the author getting a say, so what?
If someone sues me in a way that exploits or abuses me, what do I care if the plaintiff is an author or a publisher? You seem to think that authors are he only people we should care about. But many infringers are people too! Copyright should endeavor to promote their interests as well.
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Re: Uh, freedom of expression has nothing to do with copyright
Ditto, as it were, can be a very powerful form of expression. Ever see the ending of Spartacus? Ever hear about the tradition of samizdat in the Soviet Bloc?
Plus, of course, if you were right, I would not have a right to quote you, I would not have a right to stand on the street corner and read Shakespeare out loud, I would not have a right to reprint and thus help preserve old books, and I would not even have a right to tape the evening news so that I could watch it later.
Free speech encompasses verbatim repetition of existing speech; there is no originality requirement. I would've thought you knew that: your posts are usually all the same, with nary an original thought expressed.
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Re: Re: Re: Re: No, copyright did *not* have its roots in censorship
Attempting to define copyright any other way is an attempt to "win" an argument by deception. And stating that the Statute of Anne was the first copyright law is an attempt to rewrite history. These attempts have been denied.
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Re: Uh, freedom of expression has nothing to do with copyright
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Re: Re: Uh, freedom of expression has nothing to do with copyright
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Here's why:
(from the ECHR blog http://echrblog.blogspot.in/2013/01/copyright-vs-freedom-of-expression.html )
"The Court is of the opinion that in this case a wide margin of appreciation is to be given to the domestic authorities,
as the publication of the pictures of models at a fashion show and the fashion clothing shown on the catwalk in Paris was not related to an issue of general interest for society and concerned rather a kind of “commercial speech”. "
"The member states are furthermore in a position to balance conflicting rights and interests, such as the right of freedom of expression under Article 10 of the Convention with the right of property as protected by Article 1 of the First protocol to the Convention."
(And when it comes to art: article 27, clause 2 of the Convention. My addition)
"The European Court consequently refers to the Paris Court of Appeal’s finding that the applicants had reproduced and represented the pictures without authorisation by the
copyright holders, hence infringing the rights of intellectual property of others."
"In these circumstances and taking into account the particular important margin of appreciation of the national authorities, the Court concludes unanimously that there is no violation of Article 10 of the Convention."
"Secondly the Court’s judgment is a clear illustration of the difference between, on the one hand, expression and content contributing to an issue of public debate or a debate of general interest for society, and on the other hand, “commercial speech”. Speech, messages, pictures
and content which are merely money driven do not enjoy the added value of the protection guaranteed by Article 10 of the Convention. In the Court’s view, the margin of appreciation in such circumstances is a very wide one, even in a case where the interference by the authorities takes the form of a criminal conviction or a very high award of damages, both ‘sanctions’ with a risk of having a chilling effect."
So filesharing copyrighted movies, music, books and software is not protected by article 10. Sorry.
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Re: Re: Uh, freedom of expression has nothing to do with copyright
When it comes to computers, that's a different story. Computers are capable of producing infinite copies. Copyright is legal censorship of that ability. Publishers and governments need to work out new ways for people to *want to pay* creative authors, without removing that freedom.
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