copyright as the means of protecting intellectual endeavour and authorship . Peer to Peer sites (P2P) such as Pirate Bay operate by internet users accessing software or information from the site which enables them to identify swarms of other filesharers online at that time and then together, these swarms can appropriate musical and other authorial works online, free-of-charge from other swarms of internet users who have already circumvented the copyright on this material. Referring to the Plaintiff record companies, Charleton J opined: “…they as plaintiffs in this action are facing a situation of undermining their intellectual property rights (and those who have assigned their rights to them) by virtually unrestrained unauthorised copying over the internet, which I regard as being theft. I note the quote from the Envisional report, in evidence before me, which is attributed to Mr., Peter Sunde who is one of the controlling minds of Pirate Bay: ‘This is how it works whatever you sink, we build back up. Whomever you sue, 10 new pirates are recruited. Wherever you go, we are already ahead of you. You are the past and the forgotten; we are the internet and the future’ Well, that kind of statement I have just quoted is clear evidence of both an intention to flout the law and of an inflated personality which believes that Mr. Peter Sunde is on some kind of white horse and carrying a lance on behalf of good. I am convinced, on the affidavits before me, that he is carrying a lance on behalf of self-interest.” “The right to be identified with and to reasonably exploit one’s own original creative endeavour, I regard as a human right” This pro-copyright, leitmotif continued when Charleton J came to ruling on the data protection issues regarding the “three strikes” policy. His judgment includes a strong defence for the rights of copyright holders and authorial rights in the Internet sphere and in doing so he disposes of the concerns of the Data Protection Commissioner that such “three strikes” policies could result in unwarranted breaches of privacy rights. In taking a pro-author, pro-copyright stance, Charleton J clearly would not subscribe to the “Creative Commons” type argument that the resistance of copyright protection forms a kind of Net-Age equivalent of civil disobedience and Robin-Hood style law that gives “works” and information “back to the people” and away from “greedy authors” or those intermediaries, such as record companies in the present case, who exploit their works. The Judge in lyrical-language, conveys huge respect for the vocation of “l’auteur”: A view shared generally, by intellectual property academics such as Jane Ginsburg- see Taylor, Copyright in a bookless world, (2007) 30 Columb. Journal of Law and the Arts 195. EMI Records (Ireland) limited, Sony BMG Music Entertainment (Ireland) Limited, Universal Music (Ireland) Limited and Warner Music (Ireland) Limited v. Eircom [2009] IEHC 411 Plc at p.3. EMI (Ireland) Ltd and Ors v. Eircom Ltd [2010] IEHC 108 at paragraph 28.
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“Copyright is a universal entitlement to be identified with and to sell, and therefore to enjoy, the fruits of creative work. It applies to everyone who manages to produce anything copyrightable from a song, to a telephone directory, to a symphony, to a film. Were copyright not to exist, then the efforts of an artist could be both stolen and passed off as the talent of another. Were the author not entitled to exploit her or his creation by preventing others from copying it without permission, usually for a fee, then the fruits of moments of inspiration worked out through weeks of endeavour and representing, sometimes, the distillation of some fundamental experience of life would being no reward, perhaps not even applause. Even if an artist won acclaim, it alone would not keep body and soul together….. no reasonable person doubts the injustice of that situation. The law does not doubt it either”10. “It is not an amorphous extraterrestrial body…” In his famous “Declaration of the Independence of Cyberspace”11 John Perry Barlow declared “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.” Barlow and other advocates for internet self governance12 expound the idea that because the Internet is outside a country’s borders, then the law as we know it should not apply to the Internet as citizens have not consented to their being regulated by the system. In his judgment in EMI, Charleton J is diametrically opposed to the privatisation of Internet regulation. He emphasises that the Internet is “only a means of communication. It has not rewritten the legal rules of each nation through which it passes. It is not an amorphous extraterrestrial body with an entitlement to norms that run counter to the fundamental principles of human rights… There is nothing in the criminal or civil law which legalizes that which is otherwise illegal simply because the transaction takes place over the internet”13 In deciding in this manner, Charleton J perhaps sees access to the internet more as “privilege” rather than “fundamental human right”. He rejects the view that the enforcement of copyright through policies such as “three strikes” constitutes an invasion of privacy and the right to freedom of expression, even the right to freely contract, discussed below.
10 ibid, paragraph 3. 11 Published online on February 8th 1996, accessed at: http:// w2.eff.org/Censorship/Internet_censorship_bills/barlow_0296. declaratin 12 The most prominent being Prof. Lawerence Lessig, Harvard Law School, see Lessig, Code and Other Laws of Cyberspace, Version 2.0, (2006)(Basic Books). 13 ibid at paragraphs 5 and 6.
Bar Review June 2010