File-Sharing Can Be Legalized Immediately, While Complying With All Treaties

There’s consistent disinformation from the copyright industry that even if a national parliament wanted to legalize file-sharing, it is not permitted to do so because of international treaties. This disinformational notion is hogwash, and I’m going to show exactly how it’s possible to legalize the private sharing of music, movies, and other culture while complying with all international treaties.

When determining whether it is possible to legalize file-sharing – defined as the noncommercial sharing of cultural works for personal use, without the consent of the distribution monopoly holder, and assuming you care about state-level legislation in the first place – and still stay in accordance with all international treaties, an obvious shortcut is to check if there is such legislation already somewhere, legislation that has been around for a long time and is accepted as a legislative precedent by the international community and the host legislature.

It turns out there is. Specifically, there is a very little-known such exception in Sweden (a country and a law I’m very familiar with since it’s my native country), and Sweden is affected by pretty much all existing EU treaties: what applies to Sweden will apply to any EU/EFTA country, like Germany, Czech Republic, or Iceland. When computer programs were moved in under the copyright monopoly umbrella in the early 1990s, politicians actually considered the cost of enforcement of the distribution monopoly when designing the law, unlike today.

(Before the early 1990s, you needed some kind of artistic expression to get a distribution monopoly — “copyright” — on the work. Thus, for a computer game, the graphics art and sound score could be copyrighted, but the algebra required to make 3D projections of objects onto a screen could not.)

In any case, this is the relevant paragraph from the Swedish — current and up-to-date — copyright monopoly law, upphovsrättslag (law “1960:729”), my translation and highlights:

Swedish law 1960:729, 53 §, 2nd paragraph

A person who copies a computer program which has either been made available to the public, or which was
obtained with the consent of the rightsholder, shall not be held legally accountable for this, if the source of the copy wasn’t obtained from a commercial location [the person’s employer, my note] or government institution, and the copies so made aren’t used for anything else than personal use.

Well, what do you know. File-sharing computer programs such as Microsoft Office was always, and still is, completely legal in Sweden, as long as you’re not (knowingly) copying from your employer but only from other private individuals, and only using the resulting copy for personal use (not for commercial use).

This law has been in effect through all the treaties with the knowledge of all parties involved, and despite a number of changes to this law in recent years, this particular passage has always remained in effect.

With this, it is established that there is a precedent exception for personal copying for computer programs, if a country wants it, while remaining in sufficient compliance with all treaties. This goes particularly for the so-called “Berne three-step test”.

Do note the term “sufficient compliance”. This is reality and politics, two fields where things are never black and white. By this term, I mean that the exception has remained and been in continuous effect without a sustained objection. This rule in Swedish law was established with the following justification (the book Copyright by H Olsson, page 310):

The special rule [in Swedish law] for computer programs […] is justified by the practical problems with criminalizing copying for personal use and in general. It is practically impossible, or in any case very hard, to enforce a criminalization in this area. If a law cannot be enforced, it is practically ineffective, and incurs a risk for reduced respect for legislation in general.

It’s worth noting that when this rule of law was written, computer programs were the only thing copied digitally. Digitization of other works started far later – notably from 1995 onward, with Fraunhofer’s publication of the L3ENC utility to encode to the MP3 standard, and the WinAmp utility to play MP3 files on a computer. But, as has been argued time and again, this is the reason why the same exception must apply – the exact reason that made it into Swedish law in the early 1990s: a ban on private, digital copying cannot be enforced without unjustifiable costs to other liberties.

This leads us to the next question: is it legally possible, as far as treaties go, to extend such an exception to the distribution monopoly from computer programs to other forms of culture?

This brings us to something called the WIPO Copyright Treaty, or WCT. It is the base for a lot of US and EU law (like the DMCA and the EUCD). In that treaty, we see what level of harmonization is required between such exceptions:

WIPO Copyright Treaty, Article 4

Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.

In other words, the WIPO Copyright Treaty says that computer programs must have the exact same level of protection as books, according to the Berne Convention (and according to other parts of these documents, this also goes for all other forms of works).

Therefore, it is completely justifiable — even required — by the treaties in effect to extend such an exception to music, movies, and other forms of shared culture.

Therefore, file-sharing can be legalized today, while still being in compliance with all active treaties.

(Last but not least, a country can safely ignore treaties and directives, even if that’s not the point of this article. Not just “can”: it happens all the time and consistently. In Southern European countries like France or Italy, when directives can’t be implemented, politicians say it’s impossible in the local political climate, shrug their shoulders with wide gestures, and just expect that to be the end of it. Sweden hasn’t introduced the Euro, despite being very required by high-profile treaties to do so: same thing there. Basically, in the political world, a treaty violation is only a violation if you call it a violation. This may seem cynical, but it’s exactly how it works in reality – as a lawmaker, as long as you explain how you’re not violating something, you aren’t, all other aspects be damned.)