Copyright law trumps freedom of speech – ECHR


EU freedom of speech laws allow the sharing of copyrighted material online but domestic courts have rightly restricted the practice, the European Court of Human Rights (ECHR) ruled on Wednesday.

The Pirate Bay’s co-founders, Fredrik Neij and Peter Sunde Kolmisoppi, had filed a complaint about their 2009 criminal conviction for violating Swedish copyright laws, saying it breached their freedom of expression under Article 10 of the European Convention on Human Rights.

Seven judges ruled unanimously that despite Article 10 allowing the men to “receive and impart” information when enabling others to share torrent files online – even those protected by copyright – Swedish courts had balanced their rights with copyright owners’.

The men both helped to run The Pirate Bay, a notorious file-sharing website, between 2005 and 2006. They were charged in Sweden in 2007 for violating the country’s Copyright Act, before each were sentenced to a year in jail two years later. They were fined €5 million.

On appeal, their sentences were reduced but their damages increased, before they filed a complaint at the ECHR in June 2012. They argued they were not responsible for others’ illegal file-sharing and that Swedish courts had breached their freedom of speech rights.

The court agreed with the men but said the shared material on the site was protected by Swedish law and that defending copyright is a “legitimate aim”.

“Moreover, considering that Mr Neij and Mr Sunde Kolmisoppi had not removed the copyright protected material from their website, despite having been requested to do so, the prison sentence and award of damages could not be regarded as disproportionate, the court wrote,” it said.

Loz Kaye, leader of the Pirate Party UK, which is not linked to The Pirate Bay, claimed that IP owners won’t see the decision as an unequivocal victory for rights owners.

“What it shows is that the law is a matter of balance and competing interests, and there are no absolutes. It was always going to be a long shot taking this case to the court,” he told WIPR.

“More than anything, the ruling underlines why it’s important to act politically. Judges can only act in relation to the law as it stands. We should be thinking about what the law is and should become,” he added.

But Adam Rendle, a lawyer at Taylor Wessing LLP, said the ruling reinforces that criminal sanctions are appropriate for copyright infringement.

He added: “It is difficult to see a rational basis on which widespread, substantial and profit-making copyright infringement can be justified on freedom of expression grounds, given the need to protect the rights (such as copyright) of others.”

Courts in Sweden and in other countries including the UK and Italy have forced Internet Service Providers to block access to The Pirate Bay. Last month, the site’s operators moved its operation from Sweden to locations in Norway and Spain, claiming a Swedish anti-copyright group threatened legal action if the site remained hosted in the country.  

This article was first published on 14 March 2013 in World IP Review

pirate bay, european court of human rights, Fredrik Neij, Peter Sunde Kolmisoppi

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