Exclusive rights conferred by intellectual property laws can
conflict with human rights. Yet policy makers rarely acknowledge this
possibility and continue to make IP rules that increase the scope of exclusive rights.
In a recent decision the European Court of Human Rights (ECHR) disagreed, recognizing
that copyright laws can have an adverse impact on the freedom of expression.
Scholars point out that the court is likely to hear more such cases in future.
The case in question is Ashby
Donald and Others v. France. The case concerned three photographers who had
taken photos at fashion shows in Paris and posted them on the Internet site,
Viewfinder. It appears that under French law, the photographers required the
fashion house’s permission to post these photos. Because that permission was
not obtained, the French courts ruled that the posting amounted to copyright
infringement. The photographers were ordered to pay fines totaling 250,000 euros.
They appealed to the European Court of Human Rights (ECHR) arguing that their
conviction violated their free expression rights guaranteed under Article 10 of
the European Convention.
While the court held that the French decision did not
violate free expression rights of the photographers, it also acknowledged that
copyright laws can harm free
expression rights. It held that copyright laws had to be scrutinized for their
compliance with the guarantee of free expression. While limits to this right
may be imposed by law, including copyright law, those limits have to be
“construed strictly and the need for any restrictions must be established
convincingly.” Scholars point out that the decision means that external checks,
beyond limitations and exceptions already built into copyright, can be applied
to ensure protection of free expression rights.
The ECHR decision is likely to have an impact on the
recently announced US-EU Free Trade Agreement – the so-called Transatlantic Trade
and Investment Partnership Agreement. Like most FTAs, the US-EU FTA is likely to
include a chapter on intellectual property. Unlike most FTAs however, the IP
chapter might not cover a broad range of IP issues. A working group comprised
of US and EU government officials called for the US –EU FTA and suggested that
a comprehensive IP chapter might not be possible. Instead it urges the US and
EU to “explore opportunities to address a limited number of significant IPR
issues of interest to either side, without prejudice to the outcome.”
It is too early to tell what a limited IP chapter might look
like, or to rule out the possibility that the chapter will include provisions that
will adversely impact free expression rights. The tenor of the ACTA
negotiations suggests that neither side is likely to evaluate the free
expression impacts of an IP chapter. The ECHR decision, however, is likely to
require negotiators to give greater consideration to free speech concerns. Like
the US negotiators, the EU negotiators are known not to want to go beyond
existing EU law. To the extent that the evolution of that law points towards
more robust protections of free expression, the negotiators will have to pay
attention.
The ECHR decision is also significant for the principle it
enunciates. It points to the principle that the copyright system can hurt free
speech and that copyright’s inbuilt limitations and exceptions may not be
sufficient to safe guard free speech rights.
While in the US context, many would argue that fair use is
sufficient to protect free speech rights, its availability is not guaranteed in
a variety of situations. For instance, user content uploaded to sites such as
YouTube is taken down without analyzing whether it made fair use of copyrighted
material. One of the more famous examples of this situation is YouTube’s
takedown of a video of a baby dancing while a Prince song was playing in the
background. Similarly, copyright’s statutory damages regime chills many
socially, politically, and culturally beneficial uses. This regime exposes good
faith users to threats of enormous liability, thereby preventing them from
using copyrighted material, whether covered by limitations and exceptions or
not. And finally, in the digital realm, the availability of fair use is
jeopardized by a DRM regime that makes no allowance for fair use.
These factors do not diminish the importance of fair use,
but they do point to a need for external checks to copyright. These checks
would look at copyright laws, examine if they violate citizen’s free speech
rights, and introduce reforms that would remedy these harms. Public Knowledge’s
own Internet blue print project suggests some such reforms.