[pp.int.general] where is the manifesto?

[Reinier Bakels]

Hi Carlos,
First of all, if the Manifesto is not usable in our view, we just don't use it. or at least, I would propose not to use it. If you engage in a legal debate, you must be very precise, otherwise you loose the debate with lawyers. We have just seen that in another field (software patents). Sometimes you may argue that policy is first and law is second, but you don't always win the debate with that argument, especially if you start with a legal argument first.   

Secondly, the human rights issue is indeed complicated - but the confusion imho can be resolved. You refer (I presume) to art. 27(2) UDHR: "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author." Well, in practice there is little disagreement that this provision should not  be taken literally. It is widely recognised that copyright has limitations. Firstly, the subject-matter is limited (= the object). In simple terms: copyright protects expressions, not ideas. Secondly, the rights are limited, both in time and in contents. If it would be a genuine human right, neither time nor contents should be limited (except in case of plain abuse). But time is life+70, generally, and the contents are limited by the fair use doctrine in the US, and the closed system of limitations in continental Europe.

The US constitution explicitly refers to the utilitarian purpose: "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". Here the interests of society are leading.

It should be noted that the UDHR is not enforceable, unlike the ECHR. I actually referred to art. 1 of the first protocol to the ECHR:    
Article 1 - Protection of property. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. [...]

In this provision, "property" includes "intellectual property". Legal theory usually emphasises that the two are essentially different. The common denominator is however that a "property right", ONCE AND TO THE EXTENT IT HAS BEEN ESTABLISHED, deserves protection against expropriation (without a proper compensation). The logic behind this is that a right representing some (monetary) value should not be taken away from its owner, in a decent society.

It is a mistake however to assume that any production of information is entitled to be protected by law, let alone as a full property right, implying full control by the owner. This is in particular important in patent law: not all result of brainwork is considered an invention. There is no legal protection of mere ideas if only because they potentially have a very wide scope. The effort is actually immaterial: basic science results are not patentable. Another sign that it is not a human rights is that an independent rediscovery is not patent-eligible. If it would be a true human right, it could not depend from what others coincidentally did (i.e. making the inventions first). 

In sum, for the pirate party the essence is:
YES we recognise the (human rights) protection of information (or whatever overarching term you want to use) ONCE AND TO THE EXTENT IT HAS BEEN ESTABLISHED
NO we do not assume that all creativity automatically leads to such rights, and we even challenge the present rights. The present limits are the output of a political process, rather than human rights requirements, so they are subject to change whenever political conceptions change.

And it is the objective of PP to challenge the objects and contents of such rights. Not to deprive people from existing rights (without compensation). Only the latter would violate human rights.

Is that clear? A literal interpretation of the above UDHR provision would mean the end of the PP - but it would also invalidate the ECHR, the US Constitution and similar Constitutional regulations.

reinier        
 
Groeten, Grüße, Regards, Cordialement, Hälsningar, Ciao, Saygilar, Üdvözlettel, Pozdrowienia, Kumusta, Adios, Oan't sjen, Ave, Doei, Yassou, Yoroshiku, Slán, Vinarliga, Kær Kveðja
>>> REINIER B. BAKELS PhD LL.M. MSc
private: Johan Willem Frisostraat 149, 2713 CC Zoetermeer, The Netherlands telephone: +31 79 316 3126, GSM ("Handy") +31 6 4988 6490,  fax +31 79 316 7221
  ----- Original Message ----- 
  From: Carlos Ayala Vargas 
  To: Pirate Parties International -- General Talk 
  Sent: Tuesday, December 23, 2008 9:29 PM
  Subject: Re: [pp.int.general] where is the manifesto?


  Reinier Bakels wrote: 
    Thanks! 
    If it is not final, does that mean that there is still an opportunity to propose changes? (Sorry, I really had no time to do that earlier).
  If you have contacted Samir earlier, you would might have had the chance some days ago, when a debate session was summoned. About the rest of your mail, only want to answer this

    And there are some basic mistakes. There is no point in saying that autor's rights and patents are no "property rights". The essence is to focus on the limitations of substance and contents. But a decent society respects property rights, whenever and to the extent they are established. It is a human right!
  Talking about basic mistakes, if you state that intellectual pro...whatever is a human right, while UN states that not only it is not a human right, but also that it's just to defend corporate interests ... who should I follow? I think that I should follow UN -while I can sometimes disagree with UN, I think that UN is the most authoritative entity for the interpretation of human rights; nonetheless, they wrote them :)-. Author's rights -i.e., moral and material interests of authors- are considered by UN as human rights; intellectual pro...whatever is not. Regards,


                                                                                                      Carlos Ayala
                                                                                                      ( Aiarakoa )

                                                                             Partido Pirata National Board's Chairman



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