Rights: a balancing act

I believe I am right. For the time being at least, I believe that what I stand for — intellectual property reform, privacy, transparency, civil liberties – is worth standing for. I am fully prepared to accept that I might actually be wrong about some of it. Maybe copyright is just fine as it is, maybe law enforcement agencies do need blanket data retention, and maybe government does need to keep secrets. But, from available evidence, I don’t think I am wrong.

When I look at the other side of these debates, at various industry and law enforcement groups, I see a lot of rhetoric, sensationalism, hyperbole and manipulation. A very simplistic example is the slogan “home taping is killing music,” circulated by the British Phonographic Industry (BPI) in the 1980s. This is very easily ridiculed with the argument that music has survived pretty healthily over the past million or so years without copyright.

However, it is quite easy to fall into the same trap of using those tactics, perhaps unknowingly, yourself. Mike Masnick’s “The Sky’s the Limit” report, for example, has been criticised, and quite frankly for good reason. I wouldn’t trust a report sponsored by an industry organisation whose members would directly benefit from a reduction in copyright regulations to be unbiased. It is for such reasons that I have pushed for strict guidelines on what material should be used to support Pirate Party Australia’s policies.

But what has all this got to do with rights?

Recently the European Court of Human Rights (ECHR) dismissed an application from Peter Sunde and Fredrick Niej, two of the four founders of the Pirate Bay who were sentenced and fined for commercial copyright infringement. Two rights collided.

The applicants complained that their convictions interfered with their right to freedom of expression under Article 10 of the [European] Convention [on Human Rights]…

The Court has consistently emphasised that Article 10 guarantees the right to impart information and the right of the public to receive it…In the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the sharing and dissemination of information generally…

In the present case, the applicants put in place the means for others to impart and receive information within the meaning of Article 10 of the Convention…Actions taken by the applicants are afforded protection under Article 10 § 1 of the Convention and, consequently, the applicants’ convictions interfered with their right to freedom of expression. Such interference breaches ARticle 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in Article 10 § 2 and was “necessary in a democratic society” to attain such aim or aims.

…The Court observes that the applicants were only convicted in respect of material shared through TPB which was protected by copyright in accordance with the Copyright Act. It follows that the interference was “prescribed by law”.

Fredrik Neij and Peter Sunde Kolmisoppi v Sweden (European Court of Human Rights, Chamber, Application No 40397/1, 19 February 2013).

A lot of people were outraged immediately by an apparent placing of “copyright above freedom.” The linked article is but one of many expressing this sentiment.

No matter how I look at this, it is nonsense.

The Court did not place copyright above the right to freedom of expression. The Court decided that given the serious infringement of copyright that the founders were considered implicit in, their right to freedom of expression was of lesser consideration in this case.

Simply put: sometimes the enforcement of one right is considered to be more important than the enforcement of another.

All rights are superficially equal. In a utopia, no right would conflict with another. But in our reality, rights commonly conflict and there is often a remedy provided. An example relevant to the context would be that copyright gives way to the right of freedom of expression through fair use (in the United States) or fair dealing (in Australia). In other situations, the right of freedom of expression gives way to copyright.

Moving beyond that context: in the United States there has been much debate over the supposed right to bear arms. There is certainly a right to maintain an armed militia. But what do “arms” mean in this context? As has been observed by Michael Moore in the documentary Bowling for Columbine, “arms” does not extend to nuclear weapons. There is a limit to how far this right goes before it infringes on other rights.

It is only natural then to assume that the court, ruling according to existing laws (both domestic and international), would determine that assisting in copyright infringement to what is considered a significant degree negates any claim to an infringement of the right to freedom of expression. If someone is infringing a right, any right, and you are profiting from it, the court is not going to accept a claim that you are reasonably exercising a right yourself. Your rights do not extend without limits.

I find it absurd that this case can be considered anything revelational or outrageous.

Do I agree with the ruling? In context, yes. I have mixed feelings about the Pirate Bay. The laws do need reforming, but I am not sure of the Pirate Bay’s commercial aspects. There’s not really enough transparency for me to make an informed judgement, but, under the laws, this ruling was appropriate. If anything, I disagree with the original decision, but that is not what was decided by the ECHR. The criminal penalties applied by the Swedish Court are perhaps unnecessary; civil damages could have provided punishment given the amount(s) being claimed.

But what I do believe for certain is that very few rights are supreme over all other rights. The right I consider most important is the general right to life. Most would contend this could be considered supreme, but when you take into account the issue of abortion it becomes a little complex. Not unworkable, but complex (“Does an unborn child have a right to life?” and “What if the mother’s life is at risk?” are two contentious questions, obviously). The right to freedom of religion can be subverted in cases where that religion advocates, requires, or practices ritual harm of others. If you infringe another’s rights, some of your rights must be by necessity curtailed. This is why we imprison people.

The extent to which exercising your rights infringes is, as demonstrated by the ECHR, key to determining the outcome. I have a right to protect my property, and my neighbour has a right to prevent me trespassing on his land. If a fire breaks out on my property, I may justifiably use his land if necessary to put out the fire. His right is subordinate to my right. However, if I unnecessarily destroy his house in the process, I have exceeded the reasonable limits of my right, and he may exercise his right to claim damages.

We must accept that rights are a balancing act. Rights may be sorted into hierarchies, but ultimately they are all balanced against each other.


Author: Mozart Olbrycht-Palmer

Pirate Party Australia Deputy Secretary and Press Officer. Former member of the Pirate Parties International Court of Arbitration.