European Court of Human Rights Rules Copyright Monopoly…


European CourtBy JG Vibes
February 9, 2013

This week a major victory for information freedom was won as The European Court of Human Rights decided that the copyright monopoly stands in direct conflict with fundamental Human Rights, as defined in the European Union and elsewhere.

According to

“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)

Here is a summary in English of the French verdict:

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 […]

As many are aware, a patent or copyright, is an exclusive monopoly privilege over an idea, which prevents new upstarts and entrepreneurs from replicating or expanding on already existing ideas.

The case against patents and intellectual property of any kind is very strong, and growing in support especially among younger people.

In addition to being a direct violation of human rights, through allowing violence against nonviolent people, there are many other economic arguments against copyright as well.

One of the most obvious and compelling points brought forward by opponents of intellectual property is the fact that these monopoly privileges are a disadvantage to the economy and society as a whole because it stifles innovation and guarantees that prices will remain high.

The negative impact on innovation is primarily the result of an artificially high barrier to entry for new inventors and entrepreneurs.  However, when seeing how much research and development money is getting thrown away in court and on patent filings, it becomes apparent that there is an array of contributing factors that all lead in the same direction, stagnation.

If these companies are spending more money “protecting” old ideas, than they are on creating new ones it seems obvious that this would further halt technological progression and keep prices high for customers.

Mainstream media and academia presents intellectual property as a market necessity, but that hasn’t prevented the resistance against these monopoly privileges from growing.

Recently, the most cited Judge in the country, Richard A Prosner has even wrote about the need to reform the patent system, although many don’t think that his suggestions go far enough.  To be fair though, Prosner admitted that he did not know enough about intellectual property or the patent system to be able to give a full working solution to the problem.

Rick Falkvinge, the founder of Sweden’s pirate party knows his way around the subject a bit better, and calls for a full scale abolition of patents and intellectual property.

In fact, just this week he wrote a column for torrentfreak explaining why copyrights are not needed to make money or incentivize people to create.  According to him:

The “copyright industry” is deliberately measured in a thoroughly deceptive way that borders on ridicule. According to WIPO’s guidelines as to what should be included when calculating the size of the “copyright industry”, we find everything from paper pulp manufacturing, to kitchen appliance retail sales, to shoemaking (WIPO 2003, via Pettersson’s paper above).

If you include practically every part of the economy in group X, and then claim that group X is a vital part of the economy, then it’s going to look like you’re right. Just don’t get caught looking silly when it turns out how you selected that X, and that there’s no correlation at all with what you’re really talking about – the industries benefiting from the copyright monopoly, which are about one-tenth the size of those being held back by it. Want to create jobs? Kill the monopoly.

With ideas like that, it should come as no surprise that the World Intellectual Property Organization has blocked Rick Falkvinge and the pirate party from becoming observer members in the (WIPO) organization, which would give their message more credibility in mainstream circles.

In reference to this recent ruling, Rick Falkvinge warned that:

“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 additionto 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.”

Regardless of how desperately the powers that be cling to this old way of doing business, these ideas will continue to fall out of favor as their true nature is revealed to more and more people.



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