Yale Journal of Law & Technology
Volume 8, 2005-2006 Fall Issue
Copyright vs. Free Expression: The Case of Peer-to-Peer File-Sharing of Music in the United Kingdom
By Robert Danay
Robert Danay, Copyright vs. Free Expression: The Case of Peer-to-Peer File-Sharing of Music in the United Kingdom, 8 Yale Journal of Law & Technology 34 (2005).
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.
Law as a Network Standard
By Dan L. Burk
Dan L. Burk, Law as a Network Standard, 8 Yale Journal of Law & Technology 63 (2005).
The problem of global information flows via computer networks raises issues of competition, interoperability, and standard-setting parallel to those in the analysis of technical standards. Uniform standards, whether technical or legal, give rise to a constellation of positive and negative network effects. As a global network based upon the “end to end†principle of interoperability, the Internet mediates between different, otherwise incompatible computing platforms. To the extent that law and technological “code†may act as substitutes in shaping human behavior, the Internet similarly mediates between different, otherwise incompatible legal platforms. Much of the legal and social controversy surrounding the Internet stems from the interconnection of such incompatible legal systems. As with technical systems, problems of incompatibility may be addressed by the adoption of uniform legal standards. This, however, raises legal standard-setting problems similar to those seen in technical standard setting, where the standard may be “tipped†in favor of dominant producers. In particular, if law is considered a social product, the benefits of interjurisdictional competition and diversity may be lost as a single uniform legal standard dominates the market for law.