The Freedom of Expression Contours of Copyright in the Digital Era: A European Perspective

• DOI: http://doi.org/10.1111/jwip.12057
• Published date: 01 July 2016
• Author: Elena Izyumenko
• Date: 01 July 2016

The Freedom of Expression Contours of Copyright

in the Digital Era: A European Perspective

Elena Izyumenko

CEIPI, University of Strasbourg

This paper analyses the influence of the right to freedom of expression and information on European copyright law in

the digital context. Drawing on the practice of the two major European courts—the European Court of Human Rights

(ECtHR) and the Court of Justice of the European Union (CJEU)—it begins by exploring how this fundamental right

shapes both the scope of copyright protection in Europe and what is traditionally termed as “exceptions and

limitations”to exclusive rights. Specifically, a long-standing practice of the ECtHR, in accordance with which

copyright in turn may be viewed as an exception to freedom of expression and must hence be narrowly interpreted, is

scrutinized. On a related note, a recent recourse by the CJEU to the language of “users’rights”is examined, inasmuch

as it allows for a reconceptualization—in a normative framework of freedom of information—of copyright

“exceptions”not as the exceptions as such, but as the equal rights of users of protected subject-matter. In this regard,

the locus standi of “mere users”of online content and the somewhat diverging approaches of the Strasbourg and

Luxemburg courts toward granting thereof are addressed. The paper then turns to discuss the recent recourse by the

European courts to freedom of expression as a means to define the role of internet service providers in digital copyright

enforcement, implicating issues ranging from the providers’liability in respect of the third-party content posted online

to the often far-reaching injunctions imposed on non-liable intermediaries. Several conclusions are drawn from the

above analysis, reflecting on the potential of freedom of expression and information to inform the development of

European standards applicable in the field of digital copyright.

Keywords freedom of expression; copyright; users’rights; Internet

Over the past few years, European courts, responsive to the growing expansion of copyright protection,

and notably its enforcement mechanisms in the digital environment, have been devoting increased

attention to freedom of expression and information as a mechanism of external constraints on copyright

law. The present paper analyses this recent dynamic, which deviates from the conventional approach

toward copyright law as a legal regime wherein any potential conflict with freedom of expression has been

already resolved internally through the idea/expression dichotomy and the so-called “exceptions and

limitations”to copyright. The first section outlines the recent case law of the European Court of Human

Rights (ECtHR) and the Court of Justice of the European Union (CJEU), explicitly dislodging the

copyright’s immunity from external free speech checks. The newly emerging concept of “users’rights”

engendered by this approach is scrutinized in section two. The third and final section concentrates on how

the right to freedom of expression is influencing the role of online intermediaries in copyright enforcement

process—an issue that is now at the center of policy discussions on the future of EU copyright.

1

Freedom of Expression as an External Limit to Copyright

The ECtHR: An Exception-to-Rule Paradigm

Whereas no later than at the end of 90s the European Commission of Human Rights was contending on the

unusualness—if not the lack of competence—for it to resolve a conflict between copyright and freedom of

expression,

2

recent years have seen a notable increase in the involvement of Strasbourg judges in

regulating copyright disputes.

©2016 John Wiley & Sons Ltd 115

The Journal of World Intellectual Property (2016) Vol. 19, no. 3–4, pp. 115–130

doi: 10.1111/jwip.12057

Since 2013, the Court has rendered three important copyright decisions in which the freedom of

expression and information was at stake. Not without a reason, all these cases centered upon unauthorized

dissemination of copyright-protected works on the internet.

The first case, Ashby Donald and Others v France, concerned the conviction in France of the three

fashion photographers for copyright infringement, following unauthorized online publication of

photographs of designers’clothes taken by one of them at the fashion shows in Paris.

3

The ECtHR,

which had been called upon to decide whether the posting of the photographs on an internet fashion

magazine managed by two of the applicants amounted to a proportionate exercise of freedom of

expression, categorically admitted the latter’s relevance to the dispute at issue. The Court noted in

particular that the publication of photographs, even for sale and in breach of national copyright laws,

4

was

covered by freedom of expression, guaranteed under Article 10 of the European Convention on Human

Rights (ECHR) (Council of Europe, 1950). The applicants’convictions hence constituted an interference

with that provision.

5

Although no violation was found on the merits of the case,

6

the relevance of external

freedom of expression checks and balances to the disputes traditionally conferred exclusively to copyright

law was clearly admitted by the ECtHR. The Court has also advanced a number of criteria for shaping—

from the freedom of expression perspective—the so-called “exceptions and limitations”to copyright

protection,

7

but also the scope thereof.

8

Shortly following the above developments, yet another case on conflicting copyright and freedom of

expression was rendered by the Strasbourg Court in early 2013.

9

The issue revolved this time around

notorious The Pirate Bay file-sharing service, the co-founders of which were convicted in Sweden for

complicity to commit crimes in violation of the Swedish Copyright Act in that they had furthered, through

their service, the other persons’infringement of copyright concerning music, films and computer games.

Similarly to the French case, the ECtHR was of the opinion that domestic copyright regulation that resulted

in finding the applicants liable for their involvement in the running of a website interfered with Article 10

ECHR. In the Court’s view, insofar as The Pirate Bay provided—albeit in breach of copyright law—the

means for others to impart and receive information, running of this file-sharing platform was afforded

Article 10 protection. Nevertheless, no violation of the applicants’expression was established this time

either, for reasons largely similar to those advanced by the Court in Ashby Donald.

10

Most recently, in a case of Akdeniz from March 2014, the ECtHR was confronted with an issue of

blockingaccess in Turkey to the websites myspace.comand last.fm because they were disseminatingmusical

works in violation of copyright.

11

The applicant, who was a regularuser of the websites, complained about

the collateraleffects of blocking, which amounted,according to him, to a disproportionateresponse based on

Article10 ECHR. Whereas admitting the need to balance in thecases such as this one the possibly conflicting

copyright and freedom to receive information,

12

the Court nevertheless stated that the sole fact that the

applicant—like other Turkish users of the two music-sharing websites—had been indirectly affected by

blocking didnot suffice for him to be regarded as a “victim”for the Convention purposes.

13

The Court noted

in particular that the blocking did not concern the applicant’s own website

14

and neither did it deprive the

applicant of other—legitimate—ways of accessing the musical works at issue.

15

Although in all these cases the applicants lost, the above decisions share one important feature—an

approach to copyright as an exception to the right to freedom of expression. This approach, rather natural to

Convention organs, inasmuch as the case is lodged under Article 10 ECHR, might strike as unusual a

European copyright scholar, accustomed to a quite opposite perspective: of copyright being a rule, with all

unauthorized uses thereof constituting (at most) an “exception”or “limitation”to it. In accordance with

this latter approach, repeatedly echoed by the CJEU, any derogation from the “general principle”of

copyright protection “must be interpreted strictly”.

16

The new, Strasbourg Court-driven perspective on copyright law clearly challenges this premise.

Coming as a response to a failure by the European legislator to provide a flexible framework to regulate the

Elena Izyumenko The Freedom of Expression Contours of Copyright

©2016 John Wiley & Sons Ltd

116 The Journal of World Intellectual Property (2016) Vol. 19, no. 3–4