EU laws DO allow filesharing

Rickar Falkvinge, in his blog, examines the case for Sweden legalizing filesharing (in Swedish). The reasoning is worth a brief discussion here, as the same interpretations hold for other EU countries as well, and perhaps beyond.

We should first note the important fact that in European copyright laws, a distinction is made between the "moral" rights of the copyright holder (essentially right of origin) which can never be contracted away from the creator of a work, and the "economic" rights (which can).

The basis for the discussion is the Bern Convention current 1971 text:

Berne, Article 9, paragraph 1: Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

Berne, Article 9, paragraph 2: It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

A long list of detailed exceptions to the first paragraph's distribution monopoly follow. Note the introductory two qualified conditions: "does not conflict with a normal exploitation" and "does not unreasonably prejudice". These qualifiers are interpretative and are not otherwise defined.

We do however have some guidance for interpretation when the Berne text refers to printed books. It is for example an easy exercise to argue that an electronic facsimile reproduction of a book does not conflict with the "normal exploitation" of physical book sales nor "unreasonably predjudice" the interests of the author.

But what about "digital works"? The WIPO copyright treaty (WCT) deals specifically with computer software, for example. It defines software copright protection as "literary works":

WCT, Article 4: Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.

Only in national legislation (for instance Swedish laws based on the WCT) do we find any more detailed interpretation. However, here we also find explicit exceptions to the exclusive distribution rights — specifically, the right for individuals to make non-commercial copies for personal use.

These are national laws that the international copyright-holder lobbyists wish to see changed, with the erroneous claim that the overriding international treaties (Berne, WCT) require it.

Yet the reasons for these detailed national excections are clearly motivated: it is exceedingly difficult and socially unacceptable to introduce the kind of total surveillance state required to enforce a complete ban on copying for personal use. It means nothing less than complete monitoring of all private communication between individuals and of their use of all information. At the same time, it is meaningless and counterproductive for citizens' regard for the law if such bans are legislated but cannot be effectively enforced.

Meanwhile, the EUCD, often referenced as advocating a complete babn on copying actually says something different:

EUCD, article 5, paragraph 2: Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases: ... (b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned.

This EU directive in fact explicitly allows member nations to legislate exceptions for non-commercial personal use. The qualifier is "fair compensation" for the rights holders. Note well that it is nowhere stated that this compensation must be monetary, nor is it defined in the document how to interpret "fair".

In many cases, legislated generic compensation already exists — blank-media levies, for example.

It is however yet to be proven impatially that the rights holders suffer economically from non-commercial distribution. In fact, several studies suggest quite the opposite, especially when considering works not in the "top ten" charts of the respective medium/genre.