Tuesday, November 29, 2005
Robert Jacob Dannay, Department of Justice, Government of Canada, considers whether P2P (peer to peer) file sharing is protected under the European Convention on Human Rights (ECHR) and incorporated into English domestic law by the Human RIghts Act 1998. The article is forthcoming in volume 10 of the International Journal of Communications Law and Policy, 2005. Here is the abstract.
This paper explores the extent to which the peer-to-peer (p2p) file-sharing of music is a form of communication protected from the restrictions of the Copyright, Designs and Patents Act 1988 (U.K.) (CDPA) by the guarantee of free expression enshrined in Article 10 of the European Convention on Human Rights (ECHR) and incorporated into domestic law through the Human Rights Act 1998 (U.K.) (HRA). The paper first examines the protection offered to freedom of expression through the existing copyright scheme. It is asserted that due to a lack of context-sensitivity, mechanisms such as the idea-expression dichotomy must not be relied upon to deny the existence of prima facie breaches of Article 10(1) of the ECHR. Rather, such breaches must be acknowledged and justified (if possible) as being "necessary in a democratic society" under Article 10(2) of the ECHR. Next, the extent to which p2p music file-sharing represents an infringement under the terms of the CDPA (exclusive of any effect of the ECHR) is examined. It is concluded that such sharing does amount to an infringement under the Act and is not subject to any of the enumerated defences. The final part of the paper explores the extent to which the statutory restriction on file-sharing of music may be permitted under Article 10 of the ECHR. It is suggested that, for a number of reasons, the CDPA's restriction on free expression may not be "necessary in a democratic society" under Article 10(2) of the ECHR. As a result, should this statutory restriction be impugned in a U.K. courtroom in the context of p2p music file-sharing, such a court may be under an obligation to exculpate infringing parties under the "public interest" defence or to make a declaration of incompatibility under the HRA.
Download the complete article from SSRN here.