Copyright vs. Free Expression: The Case of Peer-to-Peer File-Sharing-Of Music in the United Kingdom

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 defenees. 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. COPYRIGHT VS. FREE EXPRESSION: THE CASE OF PEER-TO-PEER FILE-SHARING OF MUSIC IN THE UNITED KINGDOM ROBERT DANAY I. INTRODUCTION 34 II. THE CURRENT STATE OF FREEDOM OF EXPRESSION IN 36 COPYRIGHT LAW A. THE PREVAILING COPYRIGHT SCHEME 36 B. FREEDOM OF EXPRESSION AND THE CURRENT 38 INTERPRETATION OF THE ACT 1. THE PUBLIC INTEREST DEFENCE 38 2. THE ENUMERATED DEFENCES AND THE IDEA-EXPRESSION 39 DICHOTOMY III. P2P FILE-SHARING AND COPYRIGHT LAW AS IT NOW STANDS 45 IV. P2P FILE-SHARING AND THE ECHR 46 A. THE CDPA's TREATMENT OF P2P FILE-SHARING VIOLATES 47 ARTICLE 10(1) 1. THE RESTRICTION IS "PRESCRIBED BY LAW". 47 2. THE RESTRICTION CAN BE LINKED TO AN ENUMERATED 47 OBJECTIVE 3. THE RESTRICTION MAY NOT BE NECESSARY IN A 47 DEMOCRATIC SOCIETY (1) DOES P2P FILE-SHARING HURT MUSIC SALES? 53 V. BROADER IMPLICATIONS 61 I. INTRODUCTION The passage of the quasi-constitutional Human Rights Act 1998 in the United Kingdom in 2000 marked a significant shift in the nature of judicial review and human rights law in the country. (1) For the first time, courts were not only permitted but in fact commanded to read all domestic legislation, insofar as is possible, in a manner that is consistent with the terms of the European Convention on Human Rights. (2) Moreover, if this is not possible, a reviewing court must make a (non-binding, yet politically persuasive) declaration of incompatibility. (3) This new legal landscape has necessarily created a host of tensions in the law, as both new and existing legislation must be scrutinised through the HRA for compliance with no less than the 93 Articles of the ECHR (including its five Protocols). This paper examines one such tension: that brought about by the emergence of pan-global peer-to-peer (p2p) file-sharing networks. These networks are created using an Internet software application that links a series of individual computers, each of which is capable of sharing, searching for, creating and modifying digital copies of particular files. …