Copyright’s Impact on Free Expression Rights

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.

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