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Swedish Pirate Party: A Critical Examination

(This is a translation of a blog entry in Swedish from June 14th, which was the hitherto most read article since the blog started in 2003.)

Now that the Swedish Pirate Party has got their 7 percent of the voters in the Swedish election for the European Parliament, I suppose it is time to write something about their goal, as it is presented in the party program.

Apparently, the party toned down its agitation in the file sharing issue before the election, and focused on the topic of personal integrity and privacy. This was probably, from their point of view, a good strategy. Otherwise, the party would probably to a much larger extent than now have been associated with selfish people who just want to safeguard their free-of-charge access to entertainment. What they say in privacy issues is much easier to agree with, even if not everything on this point is opposition-free either.

It is somewhat tragicomical to see representatives of the more conventional parties (Mr. Reinfeldt seems to be an exception – in Swedish) lie flat before the Pirate Party’s electoral success, those who normally talk about the ideology basis, long-term vision, the courage to go against the tide and the aversion to populism. Hanna Dunér writes in Svenska Dagbladet (in Swedish) that such superficial PR campaigns hardly fool anyone. The day before, Thomas Gür wrote (in Swedish) that these issues are important, and although he doesn’t say it explicitly, one senses that he believes these questions would be worth a better party. P. J. Anders Linder is on to something similar in his column.

In the rest of this article, I will quote several paragraphs from the program of the Swedish Pirate Party (version 3.3, 7-8 March 2009) and add my comments (the translations here are mine, note that there is also a more official English version that differs somewhat from the Swedish program text):

We live in a surveillance society where virtually everybody is being registered and monitored. It is not compatible with a community founded on the rule of law to have all citizens subject to surveillance, and thereby treating them as crime suspects. Democracy presumes a strong protection of privacy [the Swedish term is literally ‘personal integrity’/KET] .

I can broadly agree with this. One question, however, concerns who it is that is watching us. Is it only the state (Big Brother) or are we also exposing ourselves to the inspection from other citizens (little brothers), including such things as stalking, sexual harassment, or identity theft (a better word for this phenomenon is, by the way, ”identity cloning”)?

It is curious to see the same slogan being reused again today, that was used more than ten years ago when the suggested Personal Data Act was debated. At that time, many ”netizens” protested under the slogan ”Don’t touch my Internet” and the like, but then the fire was directed against the Data Inspection Board and those who wanted statutory protection of privacy. By many, this was considered more or less unnecessary. Today, the same slogan is used among those who defend illegal file-sharing and oppose the FRA law (a Swedish internet traffic surveillence law passed in 2008). This time, the protesters got support from the Data Inspection Board’s report on the draft legislation. So it goes.

I was called to a hearing in the Swedish Parliamentary Standing Committee on the Constitution in 1998 and delivered a short speech in which I claimed that it was important to safeguard transparency, which we have been accustomed to for a couple of hundred years, through our famous Freedom of the Press Act (dating from 1766). In other debates at that time I claimed that the Internet would be almost impossible to use for publishing, since the Personal Data Act prohibited the handling of personal data, and these were defined as ”any kind of information which directly or indirectly may be associated with a natural person who is living”. Then we will soon be able to write only about ”the lilies of the field”, I argued.

Most commentators felt that the talk about threats to privacy was exaggerated. I was one of pretty few who tried to emphasize both the need for transparency and the need for protection of privacy. The question then is, to what extent can we expect the state to provide such protection? Probably as much online as in the rest of society. Hopefully we will get a decent protection from the police and other authorities, but we must also be vigilant ourselves and avoid exposure to unnecessary risks, for example by leaving our front doors unlocked. We must, however, also learn to lock our virtual front doors on the web. At the same time, we also need protection against possible abuse of power by authorities, such as law enforcement lacking in proportionality. This is, of course, important both online and in the rest of society. (I have written quite extensively – in Swedish – about the FRA-law in this blog entry. )

Copyright was created to benefit society by encouraging the creation, development and dissemination of culture. To achieve these goals, a balance is needed between society’s demands for access and dissemination and the author’s requirements for recognition and remuneration. We believe that today’s copyright is out of balance. A society where culture and knowledge are free and accessible to all on equal terms benefits all of society. We argue that a widespread and systematic abuse of today’s copyright actively counteract these aims by limiting both the supply of culture and the access to culture.

The first sentence above is fairly accurate. Many people believe that copyright law was created to enrich individual cultural practitioners (in the beginning it was all about writers). Already from the outset, however, social benefit was the first priority for legislators. (Even many of the odious privileges of the guild system were granted only if they were considered to have social utility.) In the case of copyright, legislation was the result of the ending of both printers’ privilege and of censorship. The proponents of the new law argued that if authors from now on should be responsible for what they wrote after publication (and thus evade pre-publishing censorship), they should not only have to accept the risk of being thrown in jail if they did something bad, but also be able to enjoy the fruits of their work if they did something well. That is, they should get exclusive rights to what they themselves created, for a limited time.

English caricaturist John Collier published several graphic prints using the pen name Tim Bobbin. Here is ”A Rap at the Pyrates” from 1773. A victimized writer flees upstairs while pirate printers are dealing with stacks of prints. The text accompanying the image says: ”… tho some look wondrous prim,/ They’re thieves alike; and all have robb’d poor Tim./ Now since the partial Law no man relieves/ Against these Pyrates, tho’ the worst of Thieves.”

Today’s copyright is out of balance, the Pirate Party claims. Yes, I can agree with that. The basic principles are judicious, but often the practice of the law has become skewed, and important exceptions to the law has unfortunately begun to erode. This is a fact when it comes to the right to quote, and the so-called public domain is constantly threatened by ad hoc based extensions of the copyright term. Here lies, in my view, what might be called ”abuse of today’s copyright.” When the Pirate Party writes this, there is unfortunately no further specification as to what is meant by that.

”A society where culture and knowledge are free and accessible to all on equal terms benefits all of society,” according to the party. This depends on how it is to be interpreted. If you believe that culture should be free of charge for all, problems arise immediately. Who should pay the creators of cultural works for their effort? The state? If, on the other hand, you believe that culture should be free in the sense uncensored, it is easy to agree. Per Strömbäck, a representative of the computer games industry, wrote in Svenska Dagbladet (June 13): ”To disseminate one’s own expression is one thing, but to disseminate someone else’s, without permission, is something quite different.”

There is also another aspect; that, for example, out-of-print books, CDs, etc. still may be made available in some way. Naturally, it is a problem for the further development of culture, as well as for research and education, if important source texts suddenly become unobtainable. One could envisage a reform of copyright law, where works which have not to been re-issued for a certain period, will be free for anyone to publish. Certain times and certain countries have had this kind of legislation before. Another problem are the so-called orphan works, the kind where the author is unknown or impossible to find. The Swedish Radio and the Swedish Television (both public service companies) have difficulties to get permission to re-broadcast or sell old radio and television programs because of this. Fortunately, amendments to the legislation is at hand, I believe.

Private monopolies are among society’s most dangerous enemies. This is because it leads to excessive prices and large hidden costs to citizens. Patents are officially sanctioned monopolies of ideas. Large companies fight feverishly to break the record in number of patents, which they often use against smaller competitors in order to make them unable to compete with the larger company. The aim of a monopolist is not to maintain the market price and compete on equal terms with customer benefit, price and quality. On the contrary, patent law is used as a lever to raise the price to a level that a free and fair market would never have paid, and to impose restrictions that it never would accept. We want to limit the possibility to establish unnecessary and harmful monopolies.

Well, I suppose legislators have probably always been against harmful monopolies. Therefore, both copyright and patent law have historically nearly always been limited in time. And today, all such laws are limited. (The first copyright law in England in 1710 was, by the way, modeled directly after the Statute of Monopolies, an anti-monopoly act from 1624.)

I will not dive too deeply into the question of monopolies here, but it should be clear that the exclusive rights which a writer has to his text are of a completely different nature compared to the monopoly which a wholesaler of vegetables may have regarding the trade with carrots in a particular region. Carrots are something that exists before the wholesaler gets his monopoly, while the author’s text does not exist before he writes it. An author’s right to his own text is more like the ”monopoly” a farmer has to sell precisely his own carrots, as opposed to the wholesaler monopoly, which concerns just about any carrots.

Trademarks are primarily a protection for consumers. We believe that trademark law in essence works well today, and we propose no changes.

Well, one might probably criticize trademark law to some extent as well (also in this case maybe mainly its application), e.g. when it sneaks into the field of copyright and, for instance, protects the names of characters in a novel. The fact that an author today can be sentenced for writing a so-called sequel, is in my view against the basic principles of copyright law. As long as you do not copy the original author’s exact expression, this should be permitted.

Regarding consumer protection, such aspects are inherent also in copyright and patent law. Authors may correct their editions and then improve them. This was internationally highly debated in the 1800s, when certain individuals wished to change copyright protection to be counted from the author’s death instead of from the publication date of a given work. The advantage of counting from the creator’s year of death was that otherwise the different editions of a book would become free gradually and thus, uncorrected versions would get the greatest spread. I recently read in the newspaper (in Swedish here) that Swedish translator Jan Stolpe is working on a new translation of the Essays of Montaigne, as he realized that the previous version was not entirely satisfactory – Montaigne research has simply moved forward since Jan Stolpe made the earlier version. If he had not had the copyright of his translation, anyone would now be able to benefit from the re-emerging interest in Montaigne, and to a very low expense print Stolpe’s earlier and relatively less perfect translation, before the new improved version is finished.

Musical artists may also disapprove of their recordings being distributed in cheaply made slapdash productions with bad sound, for example. So, a quality aspect is involved here too. It is about the so-called moral rights, which are often forgotten in the debate. The focus is often on economics, which certainly is essential, but the integrity of the work is another equally important side. Consequently, copyright is about integrity, it is not in itself a threat to integrity, as many seem to think. Too hard means in the enforcement of the law can, however, pose a privacy problem, but that is another matter, that concerns all sorts of legislation. (I have recently written an article that shows how important this protection is as a complement to the freedom of expression: ”What has copyright to do with democracy?”)

Also in the field of patents, there are similar aspects regarding quality.

The safeguarding of an individual’s privacy is legally defined in the Swedish constitution. From this fundamental right spring several other important human rights, such as freedom of expression and of opinion, feedom of information, the right to culture and the right to personal development. All attempts by the state power to restrict these rights, must be questioned and face a powerful resistance.

This sounds good, of course. However, artists’, musicians’ and writers’ integrity should be safeguarded as well, should it not? Or are these groups the only ones that don’t deserve the protection of the law?

The Pirate Party now stresses that it is (at least close to) a single-issue-party concentrating on personal integrity (privacy). But personal integrity concerns many more issues than those raised by the Pirate Party up till now. The party limits itself to questions concerning the network society, although at some point a representative also commented on TV camera surveillance at public places. The question is, however, if the Pirate Party can give a serious impression in privacy and integrity issues unless they deal with such dramatic topics as euthanasia or abortion, the treatment of arrestees as well as crime victims, questions about witness protection, the treatment of refugees seeking asylum, the treatment of patients and sick-listed people, the view on patient safety and confidentiality. The questions concerning privacy run on endlessly. And this is hardly a matter limited to the relation between the state and its citizens. Also a citizen can violate another citizen’s privacy. And – is it objectionable when the state is monitoring us, but OK when Google does it?

All means of power, systems and methods that the state can use against its citizens must be under constant review and scrutiny by elected representatives. When the state monitors citizens who are not suspected of crime, it constitutes a violation of an individual’s privacy in an essentially intolerable manner. Every citizen should be guaranteed the right of anonymity that today is required in the Constitution, and individuals’ right to manage their own personal data must be strengthened.

Yes, government power should be constantly scrutinized. I have written about this, how lame the Swedes’ demand for accountability of the rulers are (article in Swedish here). Of course, the state should not, for instance, wiretap people who are not suspected of crime. The wording above is, however, ”monitor” (the Party’s own English translation from Swedish says ”uses surveillance powers”) and this makes it ambiguous. We are certainly monitored when we are protected from something (videocams in shady parks, for instance, are by many regarded as benign). And if we, as the next sentence suggests, should be guaranteed anonymity (in any context?), much social life would become impossible (at least if we imagine that a considerable amount of people would take advantage of this right).

I think I understand the inherent meaning of this writing and I agree with it, but the point should be further qualified. If we always should be able to be anonymous online, shouldn’t we always be able to be anonymous in real life too? Much of what makes us constitute a society, means that we must be known to each other – and to some extent also to the state. To a moderate extent, of course – if too much, we end up in an Orwellian society; if too little, most businesses, contracts or transactions would become impossible. I wonder what will happen the day the Pirate Party realizes that the authorities know where we live, not just at some virtual IP address, but they know where we ”spend our nightly rest” as it is phrased in the law. The state knows where we live, ”in the flesh”. Will the Pirate Party demand that personal birth codes and census data be destroyed? [Note: In Sweden every citizen is registered by a birth code number which is associated with almost all personal data stored at any authority or state agency.]

Mail privacy should be advanced to a general privacy of communications. Thus, it should be prohibited to wiretap phone calls of others, read other people’s e-mail, and text or other messages, in the same way as it is now prohibited to read someone else’s mail, regardless of the technology or who is providing it. Any exceptions to this rule, should in each case remain just a well-justified exception. Employers should only be authorized to take part of an employee’s messages in order to ensure some technical functionality or in direct connection with the employee’s duties. The state shall only have the right to gather evidence and conduct surveillance of its citizens when there is a specific suspicion of crime. In all other cases the the state should assume that its citizens are innocent and leave them alone. This privacy of communications must be given strong protection, since the state on several occasions has proved incapable, when it comes to a trustworthy managing of information that has come to its disposal.

I agree in principle, although this also needs qualification. What does it mean for example that it should be forbidden to ”read other people’s e-mail”? Does this apply only to surreptitious reading by authorities or to any other individual than the e-mail’s recipient? How would one regard cases where someone forwards an email to a third person? How would one regard a case, where this person is employed at a state authority (such as a university – in Sweden there are no privately owned universities), so that mail that may not have anything to do with the work being done at the authority in question, still might be handed out to – for instance – a news media reporter, since it constitutes an official document as defined in the Freedom of the Press Act?

We want to annul the data retention directive and strengthen the protection of individual privacy.

It should be amended to prevent abuse, but of course we need the possibility to identify individuals who committed crimes on the web. It should not be more strange than if you get the number from the license plate of a car that just hit you.

Decision-making and administration in both Sweden and the EU should be characterized by transparency and openness. Swedish representatives in the EU should by all means work for the EU to more and more adopt the Swedish principle of public access to official records.

It would be interesting to know more about what the Pirate Party thinks about the tricky balance between privacy and openness. Too much of the former has a tendency to diminish the latter and vice versa.

When copyright law was originally introduced, it regulated only a creator’s right to be recognized as the creator of a work. Later it was extended to include commercial copying of works, and presently it restricts also the rights of individuals and groups working non-profit. We believe that this shift constitutes a change that is unacceptable to our society. Today, economic and technological development have put copyright completely off balance, and instead it has come to bring about unfair advantages for a few large market players, at the expense of consumers and society at large. Millions of classical works, songs, movies and visual artworks are held hostage in media companies’ vaults, attracting too little demand by their focus groups to make it worthwhile to publish them, still being too potentially lucrative to be freely released. We want to make all these works free and available to everyone, before celluloid films are destroyed by time.

The first sentence is incorrect. When copyright law was introduced it was an authors’ right to the effect that ”Every script [copy] shall be the author’s or his legal rights holder’s property.” (the Swedish act of 1810) and in the case of the very first statutory law, in England in 1710, it stated that ”the Author of any Book … shall have the sole Liberty of Printing and Reprinting such Book and Books for the Term of Fourteen Years”. Both the Swedish and the English acts use the term ”property” – ”Property in every such Book”, says the 1710 act. Of course, this right aimed at commercial reproduction, as did also the copyright that existed before this new authors’ right. Already when printers had privileges in book titles, one spoke of a kind of copyright, which definitely was a commercial right. This, however, was something else than a creator’s right, it was purely a right to print copies.

The Pirate Party and its supporters often speak of the ”few large market players”, and it may sound alluring to make a crack at big multinational media companies. Note, however, that copyright always starts with a single cultural creator; a writer, a musician, a composer, an illustrator, a painter, or a photographer. The law primarily concerns individuals. These creative people then have the legal possibility to assign all or parts of their rights to anyone, be it grandma or ASCAP or Warner Music. This is not so surprising. I can give away my tangible assets to anyone as well. Nothing says I must, however. I could handle all sales myself. So far this has been very difficult, which created a need for organizations such as ASCAP or STIM, and publishing houses, record companies, etc. I’m sure many creative people are happy to co-operate with companies or organizations like that, but today’s technology should also make it possible for small individual creators to license their works to various kinds of users through, for instance, a database service on the web.

Intellectual property rights are a way to legislate on the material characteristics of immaterial values.

Well, immaterial values will get no material characteristics, just because rules are set for how ownership of the rights to these values should be handled at, for example, sales or contract writing. I realize that the Pirate Party is hinting at what is often said, that immaterial values or intellectual property is somewhat artificial. But all property is artificial. Proudhon, who fought with Marx about ”The Philosophy of Poverty”, claimed that property is theft, which now seems to be what the pirates think about intellectual property. (Proudhon, by the way, changed his mind later, and even found that intellectual property was an important concept.)

Legislation should be amended so that it is quite clear that it only regulates the use and copying of works in a commercial context. The sharing of copies, or otherwise to disseminate or use another’s work, should never be prohibited as long as it is done on a non-profit basis.

The classification of use as being commercial or non-commercial is often artificial. Much of what we assimilate in our spare time may be useful in work situations. Today the Internet has made possible a new kind of cottage industry, where web site owners may get an income from, for example, Google Ads and the like. This means, a most private content might still have a commercial character. Certain activities may be commercial, i.e. appear in a market, but they could still be non-profit, for instance work by voluntary associations.

Copying without the profit motive is not automatically harmless. It is usually called unfair competition if someone dumps prices of goods and thus destroys the market for a competitor. Although it is not a competitor who does it in, for example, the file-sharing case, the market is still more or less destroyed when someone disseminates works free of charge, which are intended for sale.

If ”sharing of copies” is supposed to be OK (and I assume this means supplying to a mass audience and not just to a handful of friends – which the law permits) – why would it then not be equally OK to do this, if you have a profit motive?

The commercial part of copyright should remain as such, but even this needs thorough reform. The idea behind copyright law has always been to find a balance between conflicting interests in the commercial arena. Today, this balance is completely lost, and needs to be reset.

I agree with this to some extent. As I said, the dichotomy of commercial and non-commercial is often artificial. There are, for instance, several debaters who believe that the right to quote should apply only in a non-commercial context, and that this would be the case also with the use of photocopies from books made at a public or research library. But as soon as an artist makes use of something, it is commercial – artists are small business owners! If you do not work for free (as indeed many are proposing in today’s debate), then it is a commercial activity. There are hobby artists, of course, but that is another story.

We want the term of protection, that is the exclusive right to produce copies of a work for commercial purposes, to be reduced considerably to a period of, for instance, five years from the work’s publication. The commercial protection range should be regulated, so that the basic rule must allow for free creation of new works based on others, so-called derivative works. To the extent that it may be justified to make exceptions from this general rule, for example regarding direct translations of books or the use of new music in commercial films, these exceptions should be explicitly listed in the law.

Five years is far too short a time. For computer programs it might work. In the case of literature, or music and art, it may take a very long time for the ”market” or audience to acknowledge an artist as such. An artist may even die before his or her art is recognized, and in such cases the survivors can act as good advocates for this artistry. There are examples where survivors also block access to works or destroy or corrupt works, so it can certainly turn both ways. I believe the term of protection was of reasonable length when it was 50 years post mortem auctoris. It is preferable to count from the creator’s death year, otherwise the earlier mentioned problem of inferior versions getting the greatest spread would easily occur, especially if the term of protection is very short.

I agree that the possibility to make various derivative works should be clearly expressed in the law. Collage in visual art now resides in something of a legal gray area, and the use of samples in music should be permitted, as long as one, for example, borrows secondary matter from the original work and allows it to become secondary matter also in the new work.

All non-commercial acquisition, use, processing and dissemination of culture must be explicitly encouraged. Techniques which aim to limit the consumer’s legal right to freely copy and use information and culture, so-called DRM technologies, should be prohibited. In cases where this in practice is not possible, or a ban would bring about great inconvenience for the consumer, products containing DRM technology should in any case be provided with evident warnings.

I agree in part with this. E-books and digital discs with music and film must work much like books and discs did previously. We are not required to pay each time we open a book we have bought. And we expect a printed book to be readable after ten years. This need not be with a digital product, which very well might stop working when the next operating system version or the the next DVD standard is introduced. The digital world needs permanent products, that are easy to use, where the whole potential of their technology is realized. For example, it should be possible to perform a full text search through e-books, to copy text from e-books, and one should be able to make screen shots or the like from movies. I do not think there should be technical barriers against such use. If someone uses this material in an illegal manner, it should be possible to take legal action – just as the case has been with paper books or vinyl records. Many offenses will naturally fall through the meshes with such a policy, but that has always been the case. In today’s world, it will probably happen more often. But this is something I believe we must live with.

An alternative to the idea of a permanent product – which is utopian, at least seen in the longer term – is to have the right to upgrade to new formats and even to entirely new types of information carriers, as technology develops. What you buy would be a kind of license to the content. Note, however, that such a solution requires copyright. Who if not the copyright owner could offer such guarantees?

Patents have several socially adverse effects. Drug patents are responsible for people dying from diseases, that they would have afforded to treat with pharmaceuticals, if patents had not existed, as well as for skewed research priorities, and for an unnecessarily high and growing drugs bill in the rich world.

A simplified reasoning. Many valuable medicines would not have been possible to develop without the advantage in the market, that the developer may have through the patent. The pharmaceutical industry is unsound in many respects, for instance in its way of marketing products that are not properly tested, through tampering with research results, through secretly paying off scientists etc. Maybe too short patents or no patents at all could aggravate this state of affairs. It is true, however, that people are dying because pharmaceutical companies do not want to share licenses with producers in poor countries. It ought to be possible to legislate against this.

Patents for genes and life, such as patented seeds, convey unreasonable and harmful consequences. Software patents hinder technical progress in the IT field, and poses a serious threat against Sweden’s and Europe’s small and medium-sized IT companies.

I agree in the case of genetically modified seeds. The pharmaceutical industry shows itself from one of its worst sides also here, when, for example, it secures patents for genetically modified variants of traditional herbal medicines, which have been free for centuries. In order to create a market for such products, the industry is lobbying hard, to prohibit or at least heavily regulate the availability of the natural substances.

Regarding computer programs, neither patents or copyright are in my opinion very apt forms of protection. A computer program is neither a machine nor a novel. Maybe we should return to the idea that was discussed many years ago, to create a special category of intellectual property for computer programs?

Patents allegedly encourage innovation by protecting those who invent and invest in new inventions and manufacturing techniques. Increasingly, however, patents are used primarily by large companies in order to prevent smaller competitors from competing on equal terms. Instead of patents being encouragement to innovation, companies are now using their ”patent carpets” in warfare against other players to avoid competition, often patents which the holders have no intention to further develop themselves.

It is about the same situation here as with copyright. Being an inventor, you need not sell to a large company, if you don’t want to. Patents are of course a protection also for a smaller player who started his own firm to develop an idea. However, this field is of course characterized by the same inequality as the rest of society, which means that those who can afford the best lawyers often win. Of course, the law should not allow holders to keep patents indefinitely without using them for development, at least not if the authorities consider the patent as socially beneficial.

We believe that patents have had their day and that they currently actively hinder innovation and the creation of new knowledge. In addition, if one looks at all product areas and innovations which can not be patented, it is obvious that patents are not really needed – the incentive that comes from being first in a market is fully sufficient to create innovation.

Being able to be first in a market requires, among other things, an intellectual property right. Otherwise, the idea could be stolen before it is finished and get developed sooner than the ”original”, with lower quality (and here it is a question of consumer protection), so that the person who made the largest investments will not get back his/her money. It is not enough to be the first. And for how long should you be allowed to be the first in this market? Three weeks or thirty years? There must be sufficient time to allow for investments to be retrieved.

However, I believe that patent regulation has spread to areas where it doesn’t belong, such as in medicine, when pharmaceutical companies may patent a method of treatment with a non-patentable substance.

We demand an intellectual property law deeply rooted with the people, aimed to enrich individual people’s lives, to enable a healthy business climate, to create the right to a public domain of knowledge and culture, and thus benefit the advancement of the whole society.

Cultural creators also run small businesses, so they need a healthy business climate as well. Copyright certainly needs reform in some areas, but it can’t be done in such a way that the individual cultural creators stand without protection against those who – with or without payment – against their will want to dispose of their works.

The right to access a public domain is important. In the first place, we must defend what is already there, i.e. works with an expired protection period, and works that have never been protected because they were created long before copyright law existed. It is absurd that certain libraries and archives now because they use a specific technical web publication method claim copyright to, for example, faksimiles of medieval images and texts. If you would like to publish copies of these old documents, you must pay a license fee to the library or archive.

Finally, we note that the Pirate Party’s program is far more toned down than what you can hear from some of their representatives and sympathizers. There also seems to be some contradictions in the program. What does the party really think about the conflict between privacy and openness? Who in society should have the right to privacy? Only the average citizen or even, say, cultural creators – and perhaps even politicians? (Sure, we want to closely watch our elected representatives – but to what extent?) If the party now wants a copyright, which lasts for only five years – by what means do they think creators during this period should be able to protect themselves against infringement in the form of, for example, piracy or theft of unpublished material?

Finally, we also note that these issues point by point correspond with the debate throughout the 1700s. Both the piracy advocates and opponents of those days wrote pamphlets and gave inflammatory speeches at trials. New inventions in the form of machines were compared to books and plays. Publishing was compared with giving away something forever to the public. And so on. Something that changed the approach radically was when an increasing amount of thinkers started to distinguish between form and content (best clarified by Fichte), so that copyright law was to protect the expression, but not the idea behind a work (while patent on the other hand protected ideas). Then as well as now, the debate was often tied up in endless discussions about whether an intellectual property may exist or not.

Personally, I believe (as I have said in several articles) that it is much more fruitful to regard copyright as a kind of complement to the freedom of expression. If we wish to safeguard personal freedom, we should also protect a person’s expressions – not only the right to make them, but also the right not to have one’s expressions distorted or used by others in any context (expression is used here in the broad sense of the word, from a poem or letter to a three-hour movie).

And, if such an expression has been made that is lucrative, who should primarily be entitled to the profits, if not those who invested work and perhaps money in its creation?

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