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Copyright on the Human Rights’ Trial: Redefining the Boundaries of Exclusivity Through Freedom of Expression

45(3) International Review of Intellectual Property and Competition Law 316 (2014)

30 Pages Posted: 23 May 2017 Last revised: 31 May 2017

Christophe Geiger

Université de Strasbourg - CEIPI

Elena Izyumenko

Université de Strasbourg - CEIPI

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Date Written: 2014

Abstract

Courts have traditionally considered copyright to be immune to any external freedom of expression review, the tension between those rights having to be resolved through internal balancing mechanisms such as the idea/expression dichotomy or limitations and exceptions to the exclusive right. Two important rulings from the European Court of Human Rights (ECtHR) rendered in 2013 clearly challenge this premise. One is the judgment against France in the Ashby Donald case, the other an admissibility decision in the Swedish ‘‘Pirate Bay’’ application. Both rulings held that the use of a copyrighted work can be considered as an exercise of the right to freedom of expression, even if the use qualifies as an infringement and is profit-motivated. The Court, by verifying if in the given situation the interference can be justified with regard to other conflicting rights, accepts the idea that the compatibility of any copyright enforcement measure with Article 10 of the European Convention on Human Rights (ECHR) needs to be evaluated on a case-by-case basis and that no predetermined answer can be given by copyright law. Thus, it can be expected that freedom of expression might be used in the future by courts to redefine the boundaries of exclusivity. Taking this recent case law of the ECtHR as a starting point, this article examines what guidelines should be applied by the judiciary when having to solve the conflict between copyright and freedom of expression in a particular case.

Keywords: copyright, freedom of expression, Europe, exceptions and limitations, ECtHR

Suggested Citation

Geiger, Christophe and Izyumenko, Elena, Copyright on the Human Rights’ Trial: Redefining the Boundaries of Exclusivity Through Freedom of Expression (2014). 45(3) International Review of Intellectual Property and Competition Law 316 (2014). Available at SSRN: https://ssrn.com/abstract=2971592

Christophe Geiger

Université de Strasbourg - CEIPI ( email )

11 fue de Marechal Juin
BP68
Strasbourg
France

HOME PAGE: www.ceipi.edu

Elena Izyumenko (Contact Author)

Université de Strasbourg - CEIPI ( email )

11 rue de Marechal Juin
BP68
Strasbourg
France

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