Original URL: http://www.theregister.co.uk/2010/04/19/charleton_eircom_emi/

Cyberspace isn't a place - Irish Judge

Creators' rights are human rights, says Court

By Andrew Orlowski

Posted in Law, 19th April 2010 14:56 GMT

An Irish Judge has upheld the right of a creator to protect his creations as a fundamental human right. In a scathing and occasionally lyrical ruling, Judge Peter Charleton also pointed out the internet is merely one communication tool of many, and not "an amorphous extraterrestrial body with an entitlement to norms that run counter to the fundamental principles of human rights".

It's the strongest refutation of the idea most famously expressed at Davos by John Perry Barlow, in A Declaration of the Independence of Cyberspace, which warned: "You have no sovereignty where we gather."

Charleton said, "the right to be identified with and to reasonably exploit one’s own original creative endeavour I regard as a human right," pointing out that this has existed in Irish Law since before even the days of The Grateful Dead - it's credited to Saint Colmcille (521-597).

The High Court in Dublin was reviewing the settlement in last year's EMI vs Eircom case. The defendant had referred to Eircom as Eire's Data Protection Commissioner. Charleton rejected the argument, ruling that:

"Copyright is a universal entitlement to be identified with and to sell, and therefore to enjoy, the fruits of creative work... Were copyright not to exist, then the efforts of an artist could be both stolen and passed off as the talent of another."

After singing the praises of the internet Charleton notes that it is, "thickly populated by fraudsters, pornographers of the worst kind and cranks.

"Among younger people, so much has the habit grown up of downloading copyright material from the internet that a claim of entitlement seems to have arisen to have what is not theirs for free."

Everyone won from this, he noted, "except for the creators of original copyright material who are utterly disregarded."

Interestingly, Charleton rejects the idea of copyright infringement as a 'crime' - it's a mere civil offence, in this case a breach of contract. Copyright infringement doesn't include a "mental element" involved in arson or murder, he notes.

So the ruling rejects two key arguments made by critics of the UK's Digital Economy Act - that internet access is a 'fundamental human right', and that copyright enforcement infringes privacy. The ruling gives the go ahead light for a 'three strikes' policy in Ireland - one rather speedier than anything discussed here, and which will be thrashed out in the months ahead (see A user's timetable to the Digital Economy Act).

After 28 days and two letters, the ISP may serve a 14-day disconnection notice during which time the user may appeal or promise to stop for good.

You can read the ruling here. ®