Court Of Human Rights: Convictions For File-Sharing Violate Human Rights

The European Court of Human Rights has declared that the copyright monopoly stands in direct conflict with fundamental Human Rights, as defined in the European Union and elsewhere. This means that as of today, nobody sharing culture in the EU may be convicted just for breaking the copyright monopoly law; the bar for convicting was raised considerably. This can be expected to have far-reaching implications, not just judicially, but in confirming that the copyright monopoly stands at odds with human rights.

The European Court of Human Rights in Strasbourg is no dismissible small player. It is the court that oversees the European Convention on Human Rights (ECHR), which is part of the Constitution of the European Union and of most European states. When this court makes a decision, that decision gets constitutional status in all of Europe (except for Belarus, which is not a signatory).

Therefore, the copyright monopoly as such – which is ordinary law in European states – was just defined as taking a back seat to the constitutional right to share and seek culture and knowledge, as defined in the European Convention on Human Rights, article 10:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” (ECHR 10)

We have long claimed that the copyright monopoly stands in direct conflict with civil liberties (one of my most well-known keynotes, Copyright regime vs. civil liberties, even highlights this in the title). While the judiciary is slow to react to new phenomena, and issues like this percolate very slowly to the top courts where verdicts make a real difference, I’m very happy to see that the issue did indeed get to the relevant court at last, and that the Court made the only reasonable decision.

However, this verdict doesn’t mean that people sharing culture can never be convicted. Exceptions can be made to Human Rights according to a well-defined three-step test: the verdict must be necessary in a democratic society, prescribed by law (the copyright monopoly already is), and pursuing a legitimate aim (this can be discussed at length).

This means that people can no longer get convicted for violating the copyright monopoly alone. The court just declared it illegal for any court in Europe to convict somebody for breaking the copyright monopoly law when sharing culture, only on the merits of breaking the law. A court that tries somebody for violating the copyright monopoly must now also show that a conviction is necessary to defend democracy itself in order to convict. This is a considerably higher bar to meet.

I am happy to see that people persecuted for sharing culture and knowledge all over Europe got this quite strong judicial decision in their back. I’d love to see the copyright industry lobby try to make a case why it is necessary to defend democracy to convict a single mother of three who shared pop songs.

The summary in English of the French verdict is well worth reading (with my highlights):

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. 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.

It is, in other words, no longer sufficient to justify a sanction or any other judicial order restricting one’s artistic or journalistic freedom of expression on the basis that a copyright law provision has been infringed. Neither is it sufficient to consider that the unauthorised use, reproduction or public communication of a work cannot rely on one of the narrowly interpreted exceptions in the copyright law itself, including the application of the so-called three-step test [...]

UPDATE 1: Be careful interpreting this verdict as a free-for-all. It’s not. What it says is that violating the copyright monopoly laws is not enough for a conviction, and that the copyright monopoly laws collide with Human Rights. Those are two huge wins in themselves. But it doesn’t mean nobody will ever get convicted for sharing culture again – just that courts have to justify why a conviction is also “necessary in a democratic society”, in addition to having met the normal and previous bar for a conviction.

It will take years to flesh out precedents with this wide a margin for interpretation, and the specific action on trial as well as its intent will be under close scrutiny for its value to democracy as such – record label lawyers will justify a conviction with circular reasoning (“upholding the law is necessary in a democracy, so the prerequisites are already met”) and human rights lawyers will probably strike down any conviction (“human rights trump all”). So while this verdict gave two important victories, it’s not the end of the conflict nor the end of the war.

UPDATE 2: Some people have pointed at the end verdict and said it’s insane and asked how it’s good news. The overall verdict was about photographs taken at a fashion show and later published commercially, where the ECHR found that that human rights had not been violated in handing out insane damages. But the end decision isn’t the interesting thing with this verdict – it’s the two subdecisions noted above before the court arrived at an end verdict:

• The copyright monopoly does come at odds with the human right to seek and share knowledge and culture;
• In order to justify any verdict based on the copyright monopoly laws, the court must therefore also show that the verdict is “necessary in a democratic society”.

In this case, the ECHR found that the fashion show and the publication were thoroughly commercial, and didn’t have an important democratic function worth protecting over the copyright monopoly. In essence, the court is saying that political speech and political expression can trump the copyright monopoly – for instance, if you were seeding a documentary on human rights abuses with the intent of bringing about political change, that action will very likely be legal after this verdict, which it wasn’t before.

So the verdict – or rather, two subdecisions leading up to the verdict – opens up a huge gray area of law which was previously pitch black, stating clear examples of where the freedom of expression would take precedence over the copyright monopoly (even if they arrive at the end conclusion in this particular case that it doesn’t meet that bar).

A few people have observed that the court seems to draw the line at commercial vs. noncommercial, implying that all file-sharing would always be in the clear, but I wouldn’t bet on that interpretation (although it would certainly be a great outcome).

The real interesting cases come when you’re seeding ordinary commercial movies in a political context with a political intent. That one’s a coin toss for now.