Does copyright conflict with freedom of expression? First round - The Ashby Donald case

Recent case law by the European Court of Human Rights ("ECtHR") sheds new light on the relationship between copyright protection and freedom of expression. In its decision of 10 January 2013 in the case of Ashby Donald and others v. France, the ECtHR makes clear that a conviction for copyright infringement can in principle constitute an interference with one's right to freedom of expression as protected by article 10 of the European Convention on Human Rights ("ECHR"). In other words, one can no longer state that copyright is immune for external article 10 ECHR checking based on the existence of internal checks within the copyright system (such as exceptions and limitations for educational activities, news reporting, libraries or disabled persons). The Ashby Donald decision makes it clear that article 10 ECHR applies in copyright cases, and that copyright law may constitute an interference with one's freedom of expression and information.

Article 10 §2 ECHR

This means that a conviction for copyright infringement (or any other type of judicial decision restricting one's freedom of expression and information based on copyright law) must meet the three conditions of article 10 §2 ECHR. In other words, such restriction must be prescribed by law, have a legitimate aim and be properly motivated as being necessary in a democratic society. In practice, it is mostly the third condition that may be controversial in copyright infringement cases.

Wide margin of appreciation to balance fundamental rights

In spite of the fundamental applicability of article 10 ECHR in copyright enforcement cases, the ECtHR nevertheless concluded in this particular case that the conviction for copyright infringement by the French court did not amount to a violation of article 10 ECHR. The ECtHR based its decision on the fact that the infringing works were expressions of mere commercial speech, which did not contribute to a debate of general interest for society and where the national authority thus had a wide margin of appreciation in assessing the case (the case concerned the online publication of pictures taken at fashion shows without the permission of the fashion houses that had organised the shows and had imposed certain conditions on the publication of pictures taken during the shows). The ECtHR furthermore considered that the national court had properly balanced the two fundamental rights at stake (freedom of expression as protected by article 10 ECHR, and the right to property as protected by article 1 of the First Protocol to the Convention), and that there was no reason for the ECtHR to substitute its own balancing exercise for that of the French court.

Based on this decision, it may be expected that national courts should take more account of a possible conflict between copyright protection and freedom of expression, especially in cases where the infringing copy contributes to a debate of general interest for society (which was not the case in Ashby Donald). National courts should establish a proper and fair balance between the two fundamental rights of freedom of expression on the one hand and the right of property on the other hand. Unfortunately, the ECtHR did not specify what the criteria for this balancing test should be. Nevertheless, it is clear that not or insufficiently addressing the potential conflict between freedom of expression and copyright law may lead to a conviction before the ECtHR (in other words, courts should no longer ignore the potential conflict).

At the same time, the decision also demonstrates the limited practical value of an "article 10 test" in copyright enforcement cases. In most cases, it will not be easy to show that the expression that was restricted by copyright law contributed to a debate of general interest for society (which is a broad concept that depends on the circumstances of each case).  As such, in most copyright infringement cases, national courts will have a rather broad margin of appreciation to balance the right of freedom of expression and the right to the protection of property in the form of copyright. A more careful balancing test will be appropriate in cases concerning e.g. the public watchdog function of the media, political speech, the blocking of internet sites and other cases where copyright enforcement may chill a debate of general interest for society. It is to be expected that the ECtHR will in the future further develop its case law on the relationship between copyright and freedom of expression.

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Author: Bart Van Besien

Finnian & Columba

Belgium

bart@finnian.be