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Three Strikes in the Recognition of Fundamental Rights · Tuesday November 25, 2008 by Crosbie Fitch

David Durant via the Open Rights Group brings my attention to Glyn Moody’s post "Three Strikes and You’re Out" Struck Down in which Glynn quotes three salient paragraphs indicating the basis upon which EU Culture Ministers rejected a ’3 strikes’ Internet disconnection penalty for individuals who’d attracted allegations of copyright infringement.

The second paragraph caught my eye:

The EU Culture Council pushed yesterday (20 November) for “a fair balance between the various fundamental rights” while fighting online piracy, first listing “the right to personal data protection,” then “the freedom of information” and only lastly “the protection of intellectual property”.

It at least seems the EU Culture Council has some grasp of ‘fundamental rights’.

However, I wouldn’t have phrased it as a ‘fair balance’ between them.

Firstly:

  • the natural right to privacy delimits the natural right to liberty, of individuals (and anything permitted to corporations).

Secondly:

  • the natural right to liberty precludes the granting or instatement of monopolies that constrain individuals rather than just corporations.

Unfortunately, the EU Culture Council has a very weak grasp of the fundamental rights they appear to be referring to.

  1. ‘Personal data protection’ is presumably a rather oblique reference to privacy and is liable to become confused with the misguided movement to confer unnatural copyright-like constraints over sensitive/personal data post-disclosure.
  2. ‘freedom of information’ is probably a clumsy reference to ‘freedom of speech’ and is liable to become confused with the issue of government transparency.
  3. ‘protection of intellectual property’ is actually a matter of securing natural exclusive rights and primarily concerns the right to privacy. It is commonly abused to refer to the enforcement of mercantile privileges that are granted to the publishers of intellectual works (copyright and patent).

The EU Culture Council would have done far better if they’d stated instead that “Whilst individuals’ privacy rights should remain protected, their right to cultural liberty, to exchange and build upon published works, should not be abrogated by the reproduction monopolies permitted to corporations”.

In other words, laws and regulations governing corporations can do whatever those who would meddle in their markets would like, but only as long as they don’t impinge upon human rights – especially privacy and liberty. Corporations should certainly not be granted monopolies that constrain individuals.

Unsurprisingly, it seems that corporations have a similarly indignant attitude, and believe that human rights are fine as long as they don’t interfere with their state granted monopolies.

So, who’s more important? Corporation or human being?

Which class of entity best keeps EU Culture Ministers in the life to which they would be accustomed?

We’ll find out the answers in due course.



 

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