COICA: The Bastion of Intellectual Property or the Bane of Freedom of Expression?

Last year during the disputed Iranian elections and the chaos and violence which ensued, after the incumbent President Mahmoud Ahmadinejad was re-elected, there was a massive online movement which made sure that the voice of the Iranian people remained heard by the rest of the World, despite the great lengths taken by the Iranian Government to censor internet access within its borders. President Obama not only condemned the actions of the Iranian Government but pledged that the US would “ensure that Iranians can have access to the software and internet technology that will enable them to communicate with each other, and with the world, without fear of censorship”. The President was not alone in condemning these acts. His words were supported by many politicians, both Democrat and Republican, who believe that freedom of speech lies at the heart of every democracy. The US government has also publicly denounced the policy of internet censorship employed by China against its citizens.

This digression is not simply here to tell many of you what you already know, but to highlight the main point of this blog: The Combating Online Infringements and Counterfeits Act. COICA, as is has come to be known, was introduced by the Senator for Vermont, Senator Patrick Leahy, in late September. Despite an early delay, this Bill has now received committee consideration and has been placed on the Senate Legislative Calendar. COICA proposes to stop online copyrights infringement by stopping sites that are capable of sharing intellectual property in a number of ways. Firstly this Bill would allow for a civil suit to be filed against such sites (if they are within the US), resulting in their domain name being revoked and the site being shut down. It also proposes that if such sites are located outside of the United States the Justice Department would have the power to serve and order upon domestic Internet Service Providers (ISPs) to take “technically feasible and reasonable steps” to block users from being able to access that particular site.

This not only seems hypocritical, but dangerous for freedom of expression; something which the US claims to lie at the very heart of its democracy. Not only would making such a law set a bad and dangerous precedent, but it would provide the Attorney General with a great deal of power in “black-listing” sites which are felt to fall within the reach of COICA. A prime example of such a site would be YouTube. This website has become a hub for anyone who wishes to express themselves to an instantly reachable mass audience. YouTube was amongst the mediums used by the Iranian people to tell the world what was happening in their Country. However, because users often upload material which would be covered under COICA, the Justice Department could quite easily stop everyone in America from accessing it. Although YouTube tries to remove such copyrighted materials from its servers as quickly as possible, it would only have to be demonstrated that there are such materials on their servers in order for them to be served with an injunction. I am not suggesting that the Justice Department would file a civil suit against YouTube, but for sites similar to it this could become a very real reality.

All of this brings me to my point: human rights are at a very real risk if such a bill were allowed to pass. Freedom of expression (aside from being protected within the US by the First Amendment) is protected on an international level by the International Covenant on Civil and Political Rights (ICCPR). Article 19(2) of the ICCPR states: “Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

The wording of this article is very unambiguous, but it is subject to certain restrictions. However, the illegal sharing of intellectual property between people across the internet is neither defamatory in nature nor is it a risk to national security or public order. COICA is quite clearly incompatible with the provisions of the Covenant and although it does not currently violate the rights of hundreds of millions it should not be allowed to get to the point where it will.

Although online piracy is a serious problem, although trivial in comparison to others, and one which should be addressed, it should not be at the expense of such a fundamental right. If States begin by violating the right to freedom of expression in the name of combating online piracy it may set a very dangerous precedent which could see other fundamental human rights being disregarded in the name of combating something equally trivial in the grand scheme of things.

Of course governments feel that they have to address the issue of piracy, but COICA and similar laws are not the way to do it.

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