Speakers’ Corner, London, United Kingdom, October 25, 2014 (taken by Arthur Grant)

For over 150 years, people have come to Speakers’ Corner in Hyde Park, London, for the debates. Some come to speak. Others come to heckle. And others just listen and observe. A couple of weeks ago, I ended walking to Speakers’ Corner and listening with great interest to the “debates”. Some of the debates were about religious issues. Some were about immigration. Others seemed to be about nothing at all. It was fascinating to watch this all unfold, this fundamental exercise of freedom of expression.  As important as the speakers are the hecklers – described by one of the placards to the Corner as “essential to the dynamics of Speakers’ Corner”. I would also argue that equally important were the observers – those who stood and watched much like me, not saying anything but listening to the cut and thrust of the debates and simply taking in the mood of the crowds.

Speakers’ Corner is an important manifestation of the exercise of free speech. Its origins date to the mid-19th century – some date it even earlier than that. It is a reflection of a time when oral debates – heard and seen by many people – were a means of addressing matters of public interest. The world has changed dramatically since then.

We now live in a world bound together by radio-communications, by cell phones, televisions, mobile devices, satellite signals and, most prominently, by the Internet. The world has become a much smaller place. We communicate with each other around the world using Skype and FaceTime. We text and email and tweet and exchange documents and photos and videos nearly instantaneously.  The global village exists now.

Part of that global village involves file-sharing. In earlier posts, I spoke about the importance of the iRevolution to society in general and the dawning realization of the judiciary of the importance of the Internet: “The Internet Turns 25 Years Old – the Court and the World Wide Web”. In this post, I want to underscore the fact that by sharing files, whether they be audio-files, video-files, text-files, or software files, we are engaging in the extension of what is Speakers’ Corner. We are engaged in a human exercise of freedom of expression, freedom of speech.

We have all seen the continued use of “copyright” to shut down so-called “pirate sites”, usually specialized torrent file search engines. The judiciary has continued to allow copyright to triumph and has punished those who have simply made the handy search engine tool available to the masses. The masses, on the other hand, have voted long ago with their mouse clicks and have opted for “free” sharing of music and films and other cultural documents. The masses remain largely unpunished and yet the masses are the ones actually committing the breach of copyright.  Should our judicial system continue to consider that this sharing of music and films and other documents as a bad development or should it consider it to be the greatest exercise of freedom of expression ever in human history. I would suggest that greater weight needs to be given to the latter point of view.

In a 2011 article authored by Dr.  Enrico Bonadio of City Law School, London, File Sharing, Copyright and Freedom of Speech, 33 European Intellectual Property Review, No. 10, it is argued that a greater sense of balance needs to be used when assessing the competing demands of copyright law and freedom of speech.  He notes that file sharing, using peer-to-peer (“P2P”) technology can have uses which do not involve breach of any copyright:

Yet file sharing is not limited to the exchange and copying of music or movie files. People also use these technologies in order to exchange information, ideas and opinions as well as to critic other people’s beliefs and in general to convey messages. File sharing is often used as a tool for finding works which would otherwise be unavailable, finding out new genres, carrying out personalised compilations as well as for posting creative remixes, sequels and new interpretations of existing works (including parody). It therefore provides far more opportunities than in the offline world for artists and authors to reach, analyse and further develop a great number of existing works.

Dr. Bonadio also notes that file sharing networks have become “necessary components of many global virtual communities where for example information and cultural [artifacts] are shared and discussed in chat rooms or other virtual spaces including social networks”. (I note parenthetically that these “chat rooms” and “virtual spaces” are current version of Speakers’ Corner.) He goes on to observe most importantly that even the passive file sharing is part of a cultural exchange and that file sharing can be considered an “engine of free speech”

In any case, it should be noted that also file sharing of music files does contribute to [the] marketplace of ideas. It has been said that such exchange is increasingly perceived as a new form of “interest-based social interaction”. Even the passive sharing of songs with unknown people sitting in front of their PC at the other corner of the globe is to be considered an important form of cultural exchange. Those websites permitting the sharing of music, videos or other material and allowing people to leave comments regarding such material (e.g. YouTube) are pertinent examples. These internet for a include social networks and are comparable to big rooms where persons exchange opinions, ideas and information face to face. P2P file sharing systems — by permitting that — may constitute a relevant part of several persons’ “sense of community, identity and therefore self-fulfillment”. Sharing music files — coupled with the possibility of exchanging comments and points of view — contributes to the evolution of music and boosts the cultural development of a given community. No doubt people who are exposed to more music are better prepared to offer their new ideas and solutions to the artistic community.

Musical and in general artistic works are thus stimulated if there is a massive exposure to (and creative appropriation of) previous works — and such exposure is particularly favoured by the use of file sharing technologies….

It could be therefore said that file sharing is another “engine of free speech”. People who employ this technology and use existing copyrighted pieces to create derivative works and thus express their opinion are no less deserving of protection and no less innovative than the author of the previous work.

I cannot argue in this short post that the Copyright Act cannot be used to justify the infringement of the freedom of expression of the users of file sharing networks. That section 1 analysis would require evidence and the development of arguments respecting rationality, proportionality and minimal impairment that cannot be provided in this post. But I did want to emphasize that freedom of expression is being engaged at a massive, global level with the use and development of file-sharing technologies. Dr. Bonadio’s article provides an excellent starting point to initiate the constitutional analysis. I commend it to you.

In the meantime, as governments struggle to keep up with the pace of change, their legislative amendments dated from the moment that they are drafted, the citizens of the world continue to find ways to engage in this unprecedented cultural exchange. Attempts to shut down specialized search engines only lead to other, more sophisticated, search engines or methods being developed. Now that culture has been digitized, it seems impossible to put that digital genie back in the bottle.

At some point, our courts will have to wrestle with the constitutional implications of the conflict between freedom of expression and our copyright legislation. I can only hope that the courts will be sufficiently alive to the significance of the social movement that is underway as a result of the technological advances that, increasingly, link the different elements of the globe together.

I remain

Constitutionally yours

Arthur Grant

I cannot pretend in this short post now to argue that the Copyright Act