European Court Of Human Rights: No, Copyright Does Not Automatically Trump Freedom Of Expression
from the well,-that's-a-relief dept
As many know, copyright had its origins in censorship and control. But over the last few hundred years, that fact has been obscured by the rise of the powerful publishing industry and the great works it has helped bring to the public. More recently, though, laws and treaties like SOPA and ACTA have represented a return to the roots of copyright, posing very real threats to what can be said online. That’s not because their intent was necessarily to crimp freedom of expression, but as a knock-on effect of turning risk-averse ISPs into the copyright industry’s private police force.
And so there’s a growing tension between copyright law that seeks to limit unauthorized use of works on the one hand, and freedom of expression that aims to allow the maximum scope for creativity on the other. The question then becomes: which should have precedence when they clash? The European Court of Human Rights was asked just this question, and came up with the following important ruling:
For the first time in a judgment on the merits, the European Court of Human Rights has clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention [on Human Rights]. Such interference must be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the Convention. This means that a conviction or any other judicial decision based on copyright law, restricting a person’s or an organisation’s freedom of expression, must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by law and pursuing a legitimate aim.
However, it’s worth noting that the same blog post points out:
Due to the important wide margin of appreciation available to the national authorities in this particular case, the impact of Article 10 however is very modest and minimal.
That’s because there are many other factors that will need to be taken in to account for particular cases, as the rest of the blog post goes on to explore at some length. For example, one issue is whether the copyright infringement in question was for commercial or non-commercial purposes: the latter would be likely to benefit from the current ruling, while the former probably would not. Nonetheless, an important principle has been enunciated by a senior European court — one that both reflects the evolving views on this subject, and that is also likely to help shape future decisions in this contested area.