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When solving copyright cases requires to balance fundamental rights (1/2)
In the light of two decisions from international courts (UPC Telekabel, 27 March 2014 and Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden, 18 Febr. 2013)? we analyzed and compared how the European Court of Justice and the European Court of Human Rights tend today to solve copyright cases by balancing fundamental rights.
The rights at stake in this issue are, on the one hand, the copyright and intellectual property and, on the other hand, freedom of expression and of information, which are protected by Article 10 of the ECHR.
This article applies in the same way to all the different means of communication, including the Internet. Article 10 protects the right to share and receive information and the right of the public to have access to it ; the role of the Internet in the enjoyment of those rights is uncontested. Moreover, article 10 doesn’t only protect “the content of the information, but also the means of transmission or reception” (as said by the ECtHR in Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden, p. 9). For those reasons, we can assert that Article 10 is applicable indifferently to the Internet and to other means of communication.
But even if the rights refered to by the Courts are the same, the way they are balanced is different whether we are in Luxembourg or in Strasbourg.
When there is an interference between different rights and a measure, three things are checked by the ECtHR : the interference must be prescribed by law, must pursue a legitimate aim and must be necessary in a democratic society. The balance of rights intervenes when it comes to assessing this third criteria. The balance is never absolute, the weight of the rights is not given in advance. The Court always has to take several factors into account, such as the nature of the information, the weighty reasons for the interference, the nature of the competing interests and the circumstances of the case ; in other words, the ECtHR weights the interests “in concreto”.
Thanks – are you sure the ECrHR makes a balance “in concreto” in the Frederik Neij case?
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At first, it matters to stress out that both courts are, in the studied cases, balancing different fundamental rights, which are respectively the freedom of expression and freedom of information (Article 10 of the ECHR) for the ECtHR and the freedom of information (Article 11 of the Charter), freedom to conduct a business (Article 16 of the Charter) and intellectual property (Article 17 (2) of the Charter) for the CJEU.
Concerning Article 10 in particular, it appears that the freedom of expression applies to the Internet as well as to any other mean of communication. Moreover, Article 10 doesn’t have a limited scope ; it protects the freedom of information at large and, internet being the most effective mean to conduct information throughout the world nowadays, it seems logical to add it to the list.
Furthermore, in Article 10 § 2, freedom of expression can be subject to limitations for the “protection of the rights of others”. In the present case, ECtHR has considered that copyright was included in one of those rights that could be relied on in order to limit the freedom of expression of others. In the same idea, Article 17 of the Charter speaks about the right to property in general and, in its second paragraph, protects intellectual property as such, which underlines also that copyright might be considered a fundamental right.
Then, concerning the role that protection of property plays in the ruling of the courts, The ECtHR focuses on the power allocated to the Member States to limit the freedom of expression rather than on the question of property itself, whereas the CJEU quotes intellectual property as one of the fundamental rights guaranteed by the Charter and directly uses in the balance (see §47 of the case).
In the light of the two cases, it appears that the ECtHR and the CJEU have different methods as to obtain a good balancing between the different rights which those courts are confronted to in their respective rulings.
As far as the EctHR is concerned, it uses a method that is based on three precise criteria. Indeed, the infringement of a right will be accepted only provided that (1) it is prescribed by law, (2) pursues a legitimate aim and (3) is necessary in a democratic society.
On the other hand, the CJEU only identifies the different rights that it has to balance, and then does it in an exercise that does not follow any form of structure regarding criteria. It merely confronts the rights one after the other in order to make the different issues arise, and decide what to do in the light of its discoveries.
The implication of the existence of the balancing of several fundamental rights in the rulings of both the ECtHR and CJEU means that it is possible to limit one right, even though fundamental, to protect another of these rights. In other words, it is possible to say that one right (such as copyright), in a given situation, can be used in the detriment of another right (such as the freedom of expression).
By way of concluding, it appears that copyright does indeed move from the sphere of private law to the sphere of public law, according to the fact that it is protected by the ECtHR and the CJEU at the expense of other rights guaranteed by the ECHR and the Charter respectively.
Interesting, thanks. Let’s discuss during the course.
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When solving copyright cases requires to balance fundamental rights.
Both the UPC Telekabel case and the Frederik Neij and Peter Sunde Kolmisoppi v. Sweden case are about copyright infringements. Since different courts delivered those two cases, it is interesting to look at the way these Courts approach copyright cases.
The European Court on Human Rights, in Strasbourg, refers here to the following fundamental rights: freedom of expression, right to receive and impart information and copyright, which includes the exclusive right to make the work available to the public. The Court of Justice of the European Union also refers to freedom of information and copyright. In addition to those two rights, the Luxembourg Court recognizes the right to conduct a business. Both Courts use the protection of property as a fundamental right in their balancing of fundamental rights. The Court in Strasbourg balances intellectual property rights, which can involve a real obligation of protection for the Member States, with the rights of freedom of expression and freedom of information. When the European Court on Human Rights balances some fundamental rights, it always starts by looking in the text of the article if any interference might be accepted. If it is the case and if there is an interference, the Court will look at if there is a justification to that interference. To do so, the Court set in place some “proportionality test”: the first step is to see if the interference was prescribed by law, then the Court checks if there was a legitimate aim, and finally if it was necessary in a democratic society. The Court does the whole balancing process. As much as the Court in Luxembourg is concerned, the balance is made between copyright, and related rights, and the rights of freedom of information and freedom to conduct a business. This Court gives much more responsibility to Member States in the balance process because it requires that, each time a directive must be transposed, the Member States give the right interpretation to the directive, which allows a faire balance to be struck between the applicable fundamental rights.
In the case delivered by the European Court on Human rights, the complaint is based on article 10 of the ECHR. It is through this article that the right to freedom of expression is recognized for everyone. However, it does not provide any information about the Internet. We can nevertheless say that article 10 applies to both content and means of transmission so it includes the Internet. Since the Internet both enhances and affects human rights, the scope of the protection given to the right to freedom of expression on the Internet will primarily depend on the nature of the information at stake. It will probably not be as strong as the protection for political expression and debate but will still be protected.
Now that there is a much more important balancing of fundamental rights, copyright and other intellectual property rights are compared to other fundamental rights. In that way, we could say those IP rights in some way enter the realm of public law and the obligations of public authorities to protect such rights.
(Dheur Mathilde and Emmanuelle Quintart)
Show lessYour view on the balancing made by the CJEU could be discussed. It does not leave much room to the Member States, contrary than the one made by the ECrHR.
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Concerning fundamental right at stake in the first case, the ECJ talks about the right (for rightholders) to authorise or prohibit any act of making available to the public, linked to copyrights and ‘related rights’. It also talks about Article 51, 11, 16 and 17 (2) of the Charter of Fundamental Rights. In the second case, the ECtHR faces a difficult conflict between article 10 of the European Convention, which guarantees freedom expression (whilst we can notice that the ECJ does not expressly uses this norm in its decision), and article 1 of Protocol No. 1 to the Convention (protecting intellectual property).
Both courts do not protect intellectual property in the same way. The ECJ tries to give a large definition of the word “intermediary” to protect intellectual property (i.e. “any person who carries a third party’s infringement of a protected work or other subject-matter in a network”). Moreover, regarding Directive 2001/29, the ECJ reminds the importance to guarantee rightholders a “high level of protection”, and considers the internet service provider as an “inevitable actor of transmission of an infringement over the internet between one of its customers and a third party”, thus giving a very broad extent to the protection of “communication”. Another fundamental thing to notice is that the ECJ wants to convince Member States that they have a great role to play in PREVENTING abuses and violations of IP rights. Moreover, int the way of balancing fundamental rights, the ECJ reminds that Member States have to respect the principle of proportionnality (which is globally the same reasoning as the ECtHR adopts in each of its decison that concerns the protection of any fundamental right of the Convention). The balance has to be done between (i) copyrights (IP), (ii) the freedom to conduct a business, and (iii) the freedom of information. Curiously, the ECJ tries to restrict the protection granted to IP in general in saying that “there is nothing whatsoever in the wording of Article 17 (2) of the Charter to suggest that the right to intellectual property is inviolable and must for that reason be absolutely protected”.
In the second case, the EctHR is facing a conflict between freedom of expression (article 10 of the Convention), and copyright in general (protected by the German Copyright Act). At first, the Court reminds that it uses to give a very broad translation to the word “expression” (including not only the content of the information but also the means of transmission or reception). The Court does not deny the violation of the applicants’ rights to expression, but it considers that “the safeguards afforded to the distributed material in respect of which the applicants were convicted cannot reach the same level as that afforded to political expression and debate”. Indeed, the State had a wide margin of appreciation in balancing the two competing interests (IP vs freedom of expression). Eventually, the Court considers that the interference in the applicants’ rights was necessary in a democratic society.
Definitely, we can say, after analysing those two cases, that copyright is slowly changing from the sphere of private law to the realm of public law, because, international courts tend to make IP rights outweighing other fundamental rights. IP rights tend to become guarantees that national authorities have to protect and implement in their own legal system.
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The two cases revolve greatly around the balance of fundamental rights. On the one hand, there is the right to (intellectual) property raised by Constantin and Wega film production in the case of the Court of Justice and by Sweden in the case of the European Court on Human Rights, and on the other hand, there are rights such as the freedom of information pleaded by both UPC Telekabel in the CJEU case and The Pirate Bay administrators in the ECtHR case, the freedom to conduct a business raised only by UPC Telekabel and the frredom of expression raised only in The Pirate Bay case. The courts must therefore balance those rights against each other in order to rule adequately. But, it is observable that the CJEU and the ECtHR, while both using the balancing method, do not operate the exact same way. The CJEU verify that when transposing a directive there remains a fair balance between the different fundamental rights involved, while the ECtHR ascertain that the restriction of fundamental rights (here, the freedom of expression and the freedom of information) is done proportionally to the importance of the protected right (here, the right to intellectual property).
Both decisions emphasize substantially on the significance of the protection of intellectual property. The CJEU reminds that the spirit of the directive involved was to grant serious protection of intellectual property by considering that an Internet service provider (UPC Telekabel in this case) could be regarded as an intermediary of copyright infringement. Not doing so would have lessened the range of protection of intellectual property. Meanwhile, the ECtHR finds “weighty reasons” to restrict the freedom of expression and information to the benefit of the protection of intellectual property which render the restriction “necessary in a democratic society” as it is required.
Those decisions show us that while being private interests, copyrights play a role in the sphere of public law. Their protection allows interferences with fundamental rights of public interest such as mentioned above. It is interesting to see how big an impact an element of private law can have on the public sphere. Intellectual property protection impacts deeply some of the most important fundamental rights.
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The decisions made by courts in copyright cases are no longer based on statutory law (the so-called “Copyright Acts”) or in line with case law principles. Nowadays, the European Court of Human rights (EctHR) and the Court of Justice of the European Union (ECJ) rely on fundamental rights balancing in order to solve copyright cases.
In the UPC Telekabel, the Court of Luxembourg has to take into account three fundamental rights: copyright (protected by Article 17.2 of the EU Charter), the “freedom to conduct a business” (protected by Article 16 of the EU Charter) and the “freedom of information” (guaranteed by Article 11 of the EU Charter).
Indeed, the court has to ensure, one the one hand, the exclusivity of copyrighted films made available online without the consent of the right-holder, and, on the other hand, the freedom of internet users to access lawful information as well as the freedom of business of the internet service provider which was seen as an intermediary used to facilitate access to online protected-material.
In the Fredrik NEIJ case, the Court of Strasbourg has, for its part, to strike a balance between the copyright (Article 1 of Protocol No. 1 of the European Convention on Human rights) and the freedom of expression and information (Article 10 of the Convention). This case was opposing the founders of a website which was easing the exchange of data over the Internet (including copyrighted files) to entertainment companies which claimed that their author right had been infringed.
The question may arise whether article 10 (freedom of expression and information) is applicable to intellectual property cases involving the Internet in the same way as to other means of communication. According to the ECtHR, this article is relevant when it comes to property cases involving the internet: “ The Court considers that the actions taken by the applicants are afforded protection under Article 10 § 1 of the Convention”.
Furthermore, the Court stresses that: “Article 10 applies not only to the content of the information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information”.
When it comes to the question of which fundamental rights are involved in the balance, we see that references to property right are made both in the Fredrik NEJ case “Since the Swedish authorities were under an obligation to protect the plaintiffs’ property rights in accordance with the Copyright Act and the Convention (…)” and the UPC Telekabel case : “Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Intellectual property has therefore been recognised as an integral part of property”.
Another question is the difference we might find in the solving of these two copyright cases. If both Courts balance “copyright” and the right to “freedom of information”, we must point out that the ECJ relies on another fundamental right, which is the “freedom to conduct a business”. The two Courts also base themselves on different provisions (the ECJ uses the EU Charter when the ECHR relies on the European Convention on Human Rights).
This trend to balance fundamental rights has its implications: Copyright is not an absolute right anymore and has to be weighed with other fundamental rights (which are sometimes not placed on equal footing according to the circumstances of a particular case).
In the light of these two decisions, we can affirm that copyright law once restrained to the scope of private law seems to flow in the field of public law. Copyright is a fundamental right contained in the ECtHR and the Charter. The cases analysed are no longer about private property quarrels. This “property” issue has become a societal one, needed to be sorted out by international jurisdictions by balancing fundamental rights.
Sarah Graci et Florine De Ridder
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1. _ Article 6 : Right to a due process
_ Article 10 : Right to freedom of expression.
_ Art 1 of Prtocol No 1 to the convention. : intellectual property benefits protection.
2. Pt 34 : Affaire Ashby Donal et autres c. Frances « La cour rappelle que l’article 10 de la convention a vocation a s’appliquer au communication, au moyede l’internet. ( Times Newspapers Ltd c. Royaume-Uni et Delo c. Ukraine). Quel que soit le message qu’il s’agit de véhiculer, et même lorsque l’objectif poursuivi est de nature lucrative.
And Neij and sunde kolmossoppi v. Sweden decision : In the light of its accessibility and its capaicty to store and communicate vast amoutns of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the sharing and dissemination of information generally. Moreover Article 10 applies not only to the content of the infromation but also the means of trasnmission or reception since any restriction imposed on the means necessarily intereferes with the righ to receive and impart information.
We can infer from both excerpts the affirmative to the question. The freedom of expression is a fundamental that is applicable to the internet sources.
3.- Yes it does ! Because § 33 ashby (‘A l’inverse la necessite de l’ingerence resulterait en l’espece de l’importance du droit qu’elle tend a proteger : le droit de la propriee.’)
It plays a role because it justifiesthe restriction to the freedom of expression. In the balancing of the interest, it has a proeminent weight.
4. The freedom of expression in its artistic aspect and the property right. The right to access (§27 Ashby : The right of public to access information can serve as a basis to justifythe protection guaranteed by the copyright..
5. The EChR develops a reasoning on a analogical and methodological basis. The questions are wiped through a four pronged test in parallel with the three pronged test of the US Supreme court. A 4 steps reasoning is prevailing in its intellectual and reflexive schema involving : Whether there was an interferencewith the applicant’sfreedom of expression, Whether the interference was prescribed by law, Wheter there was a legitimate aim, Whether the interference was necesaary in a democratic society. Whereas the CJUE is considering and taking into account the interest at stake in a pragmatical way, with a casuistic approach.
6. The implication of the reasoning based on Balance of a fundamental right. Is that when fundamnetal right is considered, States enjoy a reduced margin of appreciation of rights garanteed by the ECDH. It also implies a tougher control of state legislation and juridisctional compliance with these fundamental rights by the ECHR.
7. Development of public state legislation regarding IP law and gradual shift from private to public law, on the grounds of the protection of freedom of expression guarnteed by article 10 of ECHR
Benaissa Fayçal/ Alexandre Cicic/ Nicolas Hamon
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Recent cases have demonstrated a rise of the influence of fundamental rights in Intellectual Property Law. As we can see, either in the reasoning implemented by the CJEU or the ECtHR, fundamental rights tend to raise issues when competing against each other. The protection of intellectual property being one of these rights, we can witness how it gets into such issues when concurring with other fundamental rights.
First of all, we will distinguish the different fundamental rigths competing and the question of internet as a mean of communication ; second, we may analyze the role of the property as a fundamental rights in the balancing system of the CJEU and the ECtHR as well as the difference in the way to balance the fundamental rights between those two courts. We will then look at the implications of a reasoning based on this kind of balancing system and end up with somes considerations about the possible move of the copyright from the sphere of private law to the realm of public law. Finally, Yaman Akdeniz v. Turkey case will be analyzed.
As the two european courts we mentionned do not shared the same sources we can notice that they referred to different rights when confronting the protection of intellectual property rights with other fundamental rights.
The Court of Justice of European Union mainly focus on, as we can see in SABAM v. Scarlet §53, SABAM v. Netlog §44 and 48, and finally UPC Telekabel §47 :
– the protection of intellectual property (copy rights and related rights) protected under article 17 (2) of the Charter of Fundamental Rights of th European Union,
– the freedom to conduct a business as protected by article 16 of the Charter,
– the freedom of information of intellectual users protected under article 11 of the Charter.
As to the European Court of Human Rights, it often makes a balance between the freedom of expression and information (protected under article 10 of the Convention) and the protection of intellectual property (article 1 Protocol 1 of the Convention). It is important to mention that article 10 applies to the communication through internet no matter what type of message it releases. So it applies to the internet in the same way than to other means of communication. (See : Frederik Neij and Peter Sunde Kolmisoppi v. Sweden and Ashby Donald v. France).
In order to understand the following discussion, it is important to notice the value of those fundamental rights. In spite of their names, those rights are not absolute and may require positive measuresof protection by the states (cf. infra).
As we just said the protection of intellectual property is, according to both courts, a fundamental right (17 (2) of the Charter and article 1 protocol 1 of the Convention). This has an influence on the right’s weigh when balance is made by the CJEU and the ECtHR.
As we can see in UPC Telekabel the reasoning of the CJEU does include on the one hand, copyrights and related rights, which are intellectual property protected under this precise provision and on the other hand, the freedom to conduct business protected by article 16 of the Charter and the freedom of information of internet users whose protection is ensured by article 11 of the Charter.
Restriction on freedom to conduct business may be acceptable but only if it does not infringe its very substance. The adressee of the injunction has the opportunity to avoid liability by proving it « has all reasonable measures » (§53). Freedom of information may be subject to restriction but only if this limitation is proportional. First of all, that means that the measures must be « strictly targeted » (§56) but there is also a procedural requirement following which « internets users must be able to assert their rights before the court, once the implementing measures are known » (§57). As to the protection of intellectual property, since it is not an absolute right, it must not lead to an integral suspension of infrigements. Nonetheless, one unequivocal condition is to be respected : « the measures taken by the addressee of the injunction must be sufficiently effective to ensure protection of the fundamental rights » (§62).
Concerning the ECtHR, it applies the test of « necessity in a democratic society ». The court is asked to weigh on the one hand the right to receive an impart information protected by art. 10 of the Convention and, on the other hand, the interest in protecting the rights of the copyright-holders as protected by article 1 of Protocol No. 1 to the Convention. This provision doesn’t only require the State not to interfere but also requires positive measures of protection. (see Neij. And Kolmisoppi case)
Even though both Courts consider intellectual property rights the same way it is essential to distinguish the reasoning of those courts.
The ECtHR applies a formal test of proportionnality which can be divided into three different parts. Indeed, when there is an interference that breaches a fundamental right, this interference may be acceptable only under the conditions developped in this particular test. These conditions may be found in the second paragraph of some fundamental rights such as art. 8 or 10 of the Convention.
In Neij and Kolmisoppi case or in Ashby Donald case the test is the following : (i) whether the interference is prescribed by law, if it meets the first condition, (ii) whether it pursued one or more of the legitimate aims and (ii) whether the interference is necessary in a « democratic society » or in other words, whether it corresponds to a « pressing social need ». That is in this last part of the test that the crucial balancing intervenes.
The CJEU applies a mere balance of the interests at stake before developping and wheighing each one of them. Indeed, The CJEU methodology is quite different. In fact, it seems that this court does not have an identical reasoning every time it strikes a balance between two fundamental rights. The court seems more or less to compare the interests at stake and to take an equitable decision in the end. For example, the CJEU decided in Scarlet v. SABAM as well as in Netlog v. SABAM that some filtering systems protecting intellectual properties but infringing the freedom to conduct business, the right to protection of personal data and the freedom of information were infringing EU Law (Directives 2000/31, 2001/29 and 2004/48) after weighing the interest at stake. On the contrary, in UPC Telekabel, we can see that the interests were different and that therefore the court ruled that the measure taken to restrict intellectual property infringements were considered as lawfull regarding EU Law.
We can finally analyze what are the implications of a reasoning based on the balancing of fundamental rights. In Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden and in Ashby Donald v. France, we can see that when a state is required to strike a balance between competing interest both protected by fundamental rights, the state is given a wide margin of appreciation. The width of the margin on appreciation depends of the type of information at issue. Generally speaking, political expression and debate will benefit from a greater protection compared to commercial expression. For example in the Neij case, this wide margin of appreciation implies that the authorities are allowed to protect the plaintiffs’ property right by adopting a specific domestic measure : the Copyright Act that permits a restriction of the fundamental right of freedom of expression.
As a reminder, there is dichotomy between private and public law. Private law deals with the legal relationships of private individuals, while public law deals with the legal relationships between the state and individuals and with the relations among governmental agencies. As result of the reading of the decisions used here, we can assert than a shift of copyright from the sphere of private law to the realm of public law occured. Why ? It is obvious that internet is the central point of the answer. The internet is a unlimited and democratized technological tool used by billions of people, increasing the number of agents intervening in the sphere of copyright rights. Since then, public interventions were needed and emerged at different level. First with the mechanism of article 10 of the Convention which open the possibility to interfere in domestic law (see : Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden). Second, by the development of european union regulation such as Directive 2001/29/EC of May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. Finally, the Council of Europe seems to invite the member states to « elaborate a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technology » (Recommendation CM/Rec 2007).
A recent case of March 2014 (Yaman Akdeniz v. Turkey) considered inadmissible the request made by an user of musical websites to which access has been blocked. This case is particular as there is no overturning precedent. Indeed, the ECtHR does not depart from its previous decisons as the reasoning implemented stays the same regarding the restrictions of the freedom of expression and the margin of appreciation whose autorites may benefit from (Ashby Donal v. France). The Court also compares the inconsistent interests of the actors such as « the right to receive information » and « the protection of copyrights ». Nevertheless, the peculiarity of this case is that it is initiated by an user of the contentious website. So, the issue here is whether the applicant can be considered as a victim in the meaning of article 34 of the Convention. This case does also put at stake the right to a fair trial which is know to be guaranteed by article 6 of the Convention. However, the Court will not go further in its reasoning as it concludes that the situation of the applicant does not fall into the terms of article 34.
In conclusion, solving copyright cases requires now to balance fundamental rights which implies the use of new balance of interests and tests depending on the Court (the CJEU or the ECtHR). Indeed, balancing the protection of copyright as property and other fundamental freedoms is from now on, a common exercise for the two Courts. The evolution of technologies as internet also change the copyright rigths world and that leads to the emergence of new european and domestic laws and to the shift from the private law to the realm of public law as well as the emergence of a new problem : the requests made by the user of some websites which access has been blocked. Hopefully, it seems that both the ECtHR and the CJEU have legal precedents with strong basis to go through those new problems.
Eve Duret, Cindy Van Rossum & Oscar Laurent
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Recently, a number of cases involving copyright issues ruled by either the Court of Justice of the EU or the European Court on Human Rights have been assessed by balancing several fundamental rights.
The fundamental rights that have been frequently cited by the Court of Luxembourg are the freedom to conduct a business (art 16 of the Charter); the right of internet users to freedom of information (art 11 of the charter); the right of intellectual property (art 17 (2) of the charter) or right to protect personal data and freedom to receive or impart information (art 8 et 11 of the charter). Moreover, the Court of Strasbourg refers to the right to freedom of expression (art 10 ECHR) in a lot of its cases.
We can notice that the fundamental rights used by both Courts are not the same. Moreover, the way the balancing is done by the CJEU and ECtHR is also different. While the CJEU confronts the opposing rights to see which one will prevail in the particular case, the ECtHR is using the well known criterias of legality, legitimacy and proportionality to decide if the inference is justified. This difference of method can be noticed in a few cases.
The respect of the freedom of expression has been tackled by the European Court of Human Rights in Ashby Donald and others v. France. In this case, the Court assessed that whatever the message or the aim, Article 10 of the ECHR applies to the content of internet. Indeed, internet takes an important part in transmitting news and information to the public all over the world. If there is a violation of freedom of speech (Article 10), it has to answer to the criteria of legality, legitimacy, and proportionality (as it occurs for the other means of communication). Therefore, the same criterias are used for the content of the Internet than what is applicable for other means of communication.
As the European Court of Human Rights mentioned in its case Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden : « Moreover, Article 10 applies not only to the content of the information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information ».
As a conclusion, the Courts have now used a new way of dealing with copyright cases. Indeed, those cases cannot be analyzed as pure property rights but have to be considered in the light of other fundamental rights. It is no longer only a matter of who is the owner of the copyrights and if they have been infringed but also to question if the measure that are taken respect the right of information, expression of other relevant fundamental rights.
Léa Trefon, Matthias Petel, Mathilde Bonus
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1) The fundamental rights that are mainly referred to by the two courts are the freedom of expression, protection of the copyright, freedom to conduct a business, freedom of information…
2) In “Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden”, the ECtHR says: “In the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the sharing and dissemination of information generally” Article 10 of the ECHR is certainly applicable for the communication through internet, but we have to be particularly cautious with the internet because “the Internet could, on the one hand, significantly enhance the exercise of certain human rights and fundamental freedoms while, on the other, it could adversely affect these and other such rights”
3) The courts often strike a balance between the protection of intellectual property and other fundamental rights such as the right to conduct a business or the freedom of information. Sometimes you have to restrict one right to protect another one.
4) Yes, it could. Copyright as a fundamental right can follow on from other right as the protection of property.
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The question of property has long been controversial and questioned by legal practitioners. The protection of property as a fundamental right has been enshrined in the European Convention since the Protocol n°1 was adopted in 1952. The question whether the word « property » includes the intellectual property hasn’t been called into question anymore (Anheuser-Busch Inc. v. Portugal). Moreover, the ECHR does very often stress the fact that the “effective exercise of the rights protected by that provision does not depend merely on the State’s duty not to interfere, but may require positive measures of protection” (Öneryıldız v. Turkey). Therefore article 1 of this Protocol comes back again and again on the table of the ECHR as mean for copyright’s holders to assert their rights. After, this Court will be called upon to weigh the interest of the applicants to facilitate the sharing of information and consider the right to freedom of expression which is always at stake, and on the other hand, the interest in protecting the rights of the copyrights-holders.
Since the legal status of the Charter of Fundamental Rights of the European Union became clear (Lisbon, 2009), cases that are brought before the ECJ raise more and more some questions of fundamental rights between which a proper balance has to be made. For the copyrights-holders this Charter is really a key knowing the fact that the intellectual property is expressly referred to in its Article 17(2). Nevertheless, as it is mentioned in UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega: “there is nothing whatsoever in the wording of Article 17(2) to suggest that the right to intellectual property is inviolable and must for that reason be absolutely protected”.
On the other side we have to notice that the preceding articles referred to the freedom to conduct a business (Article 16) and the freedom of information of Internet users (Article 11). These last ones have to be taken into account by the ECJ and make it more difficult to obtain an injunction for an unauthorized access to a protected subject-matter. In the previous case, the ECJ gives us a perfect example of the way it will find a solution to copyrights related cases: “…measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and that those measures have the effect of preventing unauthorized access to the protected subject-matter or, at least, of making it difficult to achieve…”.
Both the ECJ and the ECHR focus on the necessity to strike a balance between the fundamental rights at stake but we can remark that the way the balancing is done and the legal material they rely on are different.
The ECHR underlines the fact that the member States have to balance the competing interests protected by the Convention before taking any measures that limit one of them. In such a case, the State benefits from a wide margin of appreciation. The ECHR will after appreciate the proportionality of the measure, whether there was a legitimate aim and whether the interference was necessary in a democratic society.
All those tests cannot be found in the ECJ’s reasoning. The ECJ emphasizes the necessity for the States to transpose the directive in a way that allows a fair balance to be struck between the applicable fundamental rights protected by the European Union legal order without forgetting general principles such as proportionality. The ECJ refers also more to the conditions taken over the directives.
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The CJEU and the ECtHR have had to balance several fundamental rights and intellectual property rights (Article 1 of Protocol No.1 to the Convention – Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society) on numerous occasions. These fundamental rights were mostly the right to freedom of expression (Article 10 of the ECHR), the freedom to conduct a business (Article 16 of the Charter of Fundamental Rights of the European Union ), freedom of information of internet users (Article 11 of the Charter), freedom to receive or impart information (Article 8 and 11 of the Charter).
The CJEU ruled cases against online intermediaries concerning copyright infringements committed by third parties.
In UPC Telekabel, the Court found that the state court had fairly balanced the different rights at stake. The question was whether UPC, an internet access provider could be requested to block access to a site which was providing access or download of some copyrighted films. Article 8 (3) of the Copyright directive allows injunctions against “intermediaries whose services are used by a third party to infringe a copyright or related right” because they are best placed to bring such activities to an end. UPC denied being an “intermediary” and therefore contested the injunction that the state court condemned it to. The CJEU ruled that Internet service providers make the transmission of copyrighted works possible and as a result shall be considered as intermediaries. Moreover, the aim of the directive is to protect those rights (by bringing infringements to an end but also by preventing them) and it would go against that aim to exclude Internet service providers from the scope of Article 8(3).
To us, this ruling appears to be somewhat problematic. The Court ruled that it is the online intermediary that should try to maintain a fair balance between the interests at stake, namely the intellectual property right-holder and the right of the users to have access to information. But we are wondering if the Internet service provider really has the ability to decide what “maintaining a fair balance” means.
The CJEU approved the fact that the injunction did not specify which reasonable measures the Internet service provider was required to take in order to maintain that balance. It said that the national court struck the right balance between the copyright, the intermediary’s right to conduct a business (because it has the possibility to show that all necessary measures were taken to avoid responsibility and is therefore compatible with EU law) and the freedom of information of the Internet users.
In both Ashby Donald and others v. France and Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden, the ECtHR considered that the states benefited from a particularly wide margin of appreciation and that the protection of intellectual property rights prevailed on the freedom of expression. The Court underlined that numerous factors influence the width of the margin of appreciation and that expression was not protected while used in a commercial purpose as much as it is protected while used is such a way as to contribute to political expression and debate.
When balancing fundamental rights, the ECtHR seeks whether the interference with the fundamental right (i.e.freedom of expression in the Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden case, as they render easier the sharing of information) was prescribed by law (by the Copyright Act in this case), whether there was a legitimate aim (which usually consists in the protection of the other fundamental right which is being balanced, i.e. protecting the rights of the copyright-holder in this case) and whether the interference was necessary in a democratic society. For instance, in this case, the court found that the State had the obligation to protect the property rights and benefited from a margin of appreciation to restrict the freedom of expression as it was necessary in a democratic society.
So the ECtHR recognised that there had been an interference with the right to freedom of expression and that neither the means of transmission nor the aimed pursued (profit-making or not) were of any matter. But because the interference was prescribed by law, pursuing a legitimate aim and necessary in a democratic society, there was no breach of the ECHR.
It is possible and it is necessary to rely on other fundamental rights to support that copyright is a fundamental right because “the protection of the right to intellectual property is […] enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union. There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected” (§41 SABAM v. Netlog).
We believe that if the ECtHR and the CJEU had not been considering intellectual property rights as fundamental rights, the outcome of these cases would have been drastically different. The rights to freedom of expression and to freedom of information would have prevailed.
Show lessWell-done, you have highlighted some differences and issues. Thanks
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Considering the sentences of the cases C-314/12 UPC Telekabel and FREDRIK NEIJ AND PETER SUNDE v. SWEDEN, concerning actions against online intermediaries for copyright infringements committed by third parties, has emerged that the Court of Justice of the European Union (CJEU) and the European Court on Human Rights (ECtHR) have reached a decision making a balancing among some fundamental rights.
The human rights mostly summoned are, on one hand, the copyrights and related rights, (art.17 of the Charter), which are intellectual property, on the other, the freedom to conduct a business and finally the freedom of expression and information.
For example, in the case C-314/12 UPC TELEKABEL, Telekabel , an internet service provider was forced to have to balance the fundamental rights of the appellants, Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH, holders of copyrights violated by the site KINO.TO and equally their own freedoms of expression (ART. 10 Echr), information (art.11 of the Charter) and freedom to conduct a business (ART 16 of the Charter), since the provider has the purpose of making public the opinions and the information of their own clients.
According to Art.10 Echr, we can see that it can be applicable to Internet too because it has become the most immediate means of communication through it’s possible data exchanges all over the world. That’s why it is absolutely necessary to extend the application of the art.10 also to Internet because, particularly in the paragraph 2, it represents a form of conservation against abuses that can be put into effect on Internet.
The same fundamental rights are summoned in the case Fredrik Neij and Peter Sunde v. Sweden too. The case is about the website « The Pirate Bay » that provides magnet links to facilitate peer-to-peer file sharing. In 2012 the « Pirate Bay » website has been disconnected, since it violated copyrights, although art.10 Echr protected in-copyright material exchange. The European Court on Human Rights confirmed the punishment decided by the Sweden Court, underlined that it has realized a correct balancing of human rights.
So in the first case (UPC TELEKABEL), the CJEU in the detail has declared that the conservation of the copyright must be implemented through « measures, procedures and remedies that shall be fair and equitable and that shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays » that must be established by every Member States. (Art.3 Directive 2004/48). Therefore, the CJEU has declared that the injunction of closing the website is not proportionate and it entails a limitation of freedom to conduct business and freedom of expression. So the Court has decided that UPC TELEKABEL could only be required to forbid its customers access to the website at issue, but it is up to it to decide with which measures.
Whereas in the second case (FREDRIK NEIJ AND PETER SUNDE v. SWEDEN), the ECHR, in its definitive sentence, has confirmed the Sweden Court’s decision, lending more weight to protection of copyright, in comparison to the other rights claimed by the creators of the website.
Where do you read that the CJEU in UPC Telekabel “has declared that the injunction of closing the website is not proportionate”? Thanks for responding to the questions otherwise.
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1. The European Court of Justice usually refers to Article 11 (Freedom of expression and information), Article 16 (Freedom to conduct a business), Article 17 (Right to property) of the Charter of Fundamental Rights.
The European Court of Human Rights usually refers to Article 10 (Freedom of expression) and Article 1 of the first Protocol (Protection of Property).
2. No, not neccessarily: the Court mentions in the Neij decision that political expression and debate could deserve a higher level of protection than freedom of information (page 11, para2.), so the level of protection depends on the type of information in question.
3. Yes, according to both Courts, copyright protected materials – as being intellectual property – deserve the protection that any other kind of property goods do under Article 1 of the first Protocol of the ECHR, and under Article 17 of the Charter of the Fundamental Rights, so both Courts use these articles in the balancing.
4. In the ECHR, Freedom of expression (Article 10) could also protect copyright protected materials. In the Charter of Fundamental Rights, Freedom of arts and sciences (Article 13) could also be applicable.
5. The balancing of the two Courts is very similar. For example, both Courts oppose right to property/protection of property to freedom of expression and information. However, a difference could be that while the ECHR emphasizes that freedom of expression is not an absolutely protected right, and therefore can be an object to restriction, the ECJ emphasizes this feature in connection with the right to intellectual property (para61.). The difference between the emphases shows that there was a difference in the starting points: the ECJ started its balancing considering to restrict right to intellectual property, while the ECHR started it considering to restrict freedom of expression. This could implicate that the “intention” of the ECJ was at first to restrict the right to intellectual property.
6+7: The implication of the reasonings could be that copyright will be received as a human/fundamental right. This way, as a result of the balancing, even other human rights could become objects to restriction. It also means that when copyright is in question, applicant can bring their cases to these Courts, if neccessary. By recognizing copyright as a human/fundamental right – as the Courts did it in these cases – copyright moves from the private law sphere to the public law sphere: it could be enforced against the state, the state also has to respect it, or even has to take positive measures to help it to be respected.
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Thanks. Why do you write (I slightly modified your text): “there is a difference in the starting points: the ECJ started its balancing by considering the possibility to restrict the intellectual property, while the ECHR started by considering the restrict to freedom of expression”? Where does it come from that the balancing is different? I stressed during class that the CJEU procedure is to get a preliminary ruling on the interpretation of EU law, while the ECrHR receives a complaint by a party that a Convention right has been breached. Therefore the approach differs.
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The fundamental right most referred to in Strasbourg in matters of copyright is mainly the article 10 of the European Convention on Human Rights. Where as in the Court of Justice of the European Union, there are several rights such as the articles 11, 16, 17, 51 and 52 of the Charter on fundamental rights. Other fundamental rights come to support the fact that copyright is a fundamental one, such as the freedom of expression and information (article 11 of the Convention), the right to conduct a business (article 16 of the Convention) in the sense that ITunes for instance, would not work if the songs it sells were not protected. As a last and pretty obvious example, the article 17 of the Convention grants the right to property.
Article 10 applies to the Internet as it applies to other means of communication. The said article gives the right “to impart information and the right of the public to receive it”, which could apply to any other communication method. However, because of its nature, the Court regards the Internet as a particular source of information with such an impact that it could potentially harm as well as reinforce certain fundamental rights. Internet is a great tool to promote the freedom of expression and the right of being informed. Intellectual properties are accessible by a wide range of people but circumventing those protections are numerous in their ways. Having an effective protective system as well as an efficient legal order are ways to incentivize writers, intellectuals, artist and other property right holders to trust the Internet.
In the Telekabel and Kolmisoppi case, several fundamental rights were at stake. A balance between those rights must be made and strict scrutiny must be applied. The article 10 of the Convention specifies the situation in which those rights may be limited. As underlined in those cases, the freedom of expression and information are not absolute. The implications of judging such situation may be of grand importance; the courts are sources of law and will influence the reasoning in further litigations. An emphasis will be set on a certain fundamental right, which will be balanced with the interests of the parties.
As a conclusion, could we speak of a transfer of copyright from the private to the public law? In those decisions, the copyright applies to pieces of work that can be reached by anyone, thanks to the nature of the Internet. But does it mean that it is enough to operate that transfer? At the end of the day, the copyright applies to all kinds of work, and at the core of any situation, we only find two people: the copyright holder and the responsible of the infringement. The range of the case, whether it involves thousands of people, a private company or a public authority, will depend on the circumstances of the case. In our opinion, we cannot assume that copyright has moved to public law.
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The recent tendency to decide Intellectual Property Rights (“IPR’s”) matters by balancing fundamental rights should not be surprising. The right to Intellectual Property is indeed enshrined in both the European Convention on Human Rights (“ECHR”) – albeit in an additional protocol (Article 1 of Protocol n°1) – and in Article 17, 2 of the Charter of Fundamental Rights of the European Union (“EU Charter”).
Concerning music, videos and photography, intellectual property rights, which, inter alia, limit the use and distribution of those creations, are almost naturally conflicting with the right to freedom of expression. This right is contained in Article 11 of the EU Charter as the freedom to receive or impart information, and in article 10 of the ECHR, which is much more encompassing than the previously cited article 11 of the EU Charter.
Additionally, other fundamental rights are also involved, mainly in the CJEU jurisprudence: as the issues often involve the internet, Internet Service Providers (“ISP’s”) and website authors are often involved. Indeed, to protect IPR’s, those two actors are often asked, by the author of the work whose property right is being violated, to take measures to stop a current violation of IPR’s. This often means a surveillance or filtering mechanism needs to be set up by those actors, in order to prevent their customers from illegally accessing the protected materials.
As both actors benefit the right to conduct (a) business, guaranteed by article 16 of the EU Charter, requiring them to instal such a filtering system could – potentially – implicate a violation of that right. Moreover, that same mechanism could also be an infringement of their customers’ right to protection of their personal data, as guaranteed by article 8 of the EU Charter.
The conflict between those different fundamental rights means the court has to balance the different interests being protected by those rights. As such, determining which fundamental right triumphs over the other often depends on the particular circumstances of the case.
The CJEU’s case law seems to focus on the fact that there can be no general obligation to monitor communications imposed upon an ISP or website holder. Moreover, measures violating the aforementioned fundamental rights should be strictly targeted, disputable before a national court, the measures must not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and “they must have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging”.
The ECtHR seems to focus more on the free speech argument: the right to freedom of speech should be protected. However, the concerned speech in IPR issues is often commercial speech. As the right to freedom of commercial speech is not absolute, it can thus be limited by the law if that limitation is pursuing a legitimate goal and is necessary in a democratic society. Concerning the “necessary in a democratic society”, the ECtHR adopts the view that Member State have a wide margin of appreciation when there is a conflict between two fundamental right guaranteed by the ECHR. It is here that one can see the importance of the protection of property as a fundamental right.
The implication of this trend is that there is an additional “battlefront” for IP issues,This also means that the enforcing of a legal IP right can still be illegal. A de iure perfectly valid right would thus not be protected in reality. This could prove problematic in the future, as it is a question challenging the core of IPR’s: does the existence of the internet, and its endless means of lightning fast communication pose a threat to the existence of IPR’s, or can the internet be regulated in a way respecting the different fundamental liberties at stake ? Time will tell…
Thanks. Why do you write that: “article 10 of the ECHR, which is much more encompassing than the previously cited article 11 of the EU Charter”?
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It seemed to me it is much more encompassing mainly because of the case law from the ECtHR, which is much more adventurous than the case law from the CJEU. The ECtHR has/had a tendency to interpret terms and provisions broadly, and as such give words and provisions a broader/new meaning and scope (whereas the CJEU was/is less adventurous). However, after looking it up I noticed that “pursuant to Article 52(3) of the Charter, the meaning and scope of this right (article 11 of the EU Charter) are the same as those guaranteed by the ECHR. The limitations which may be imposed on it may therefore not exceed those provided for in Article 10(2) of the Convention, without prejudice to any restrictions which competition law of the Union may impose on Member States’ right to introduce the licensing arrangements referred to in the third sentence of Article 10(1) of the ECHR“. Therefore, there is no real difference, so I stand corrected.
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The Court of Justice of the EU and the European Court on Human Rights are confronted to a number of copyright cases that requires to balance fundamental rights.
We can see in the two cases that some fundamental rights are often involved in the Court in Luxembourg and in the Court in Strasbourg. Concerning the decision of the CJEU (UPC Telekabel), it has to deal with intellectual property rights (copyright and related rights) that are protected under Article 17(2) of the Charter of Fundamental Rights of the European Union, the freedom to conduct a business protected under Article 16 of the Charter and the freedom of information ensured by Article 11 of the Charter. In the same way, the case delivered by the ECtHR (Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden) concerns intellectual property rights (copyright) prescribed in the Copyright Act, the freedom of expression and the freedom of information protected by Article 10 of the European Convention on Human Rights.
We can underline the fact that Article 10 of the ECHR is applicable to Internet like other means of communication. Indeed, like the CJEU notices, Internet plays a huge role in enhancing the public’s access to news and facilitating the sharing and the dissemination of information generally. Therefore, Internet is considered as a mean of communication in its own right and then, Article 10 of the Convention is applicable in the same way as it is applicable to other means of communication.
Moreover, even if the fundamental rights involved in both cases are partly similar, the balancing of them is different. The European Court on Human Rights operates a control of proportionality. As we can see in the case, to accept an interference with a fundamental right like the freedom of expression protected under Article 10 of the Convention, it has to be prescribed by the law, pursued one or more legitimate aims referred in the article involved, and it has to be necessary in a democratic society to attain such aim or aims. Concerning the balancing executed by the Court of Justice of the EU, it is a bit different. Indeed, the CJEU doesn’t use the test of proportionality like the ECtHR but compares intellectual property rights with others fundamental rights and tries to find a fair balance between them. It considers that intellectual property rights are not especially inviolable and so, they are not absolutely protected by the Court. Therefore, the Court suggests to take some reasonable measures in order to permit the coexistence of the applicable fundamental rights.
As a matter of fact, a reasoning based on the balancing of fundamental rights involved a certain margin of appreciation for the State because you have competing interest. Then, it is a “case by case” approach. There are no solutions predetermined in advance.
Finally, after the reading of these cases, we can say that copyright moves from the sphere of private law to the realm of public law because Internet is available for a large community and not just for one person. Therefore, the material protected is accessible by everyone so the copyright isn’t more under the private law.
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1) CJEU :
– Article 17 (2) of the Charter : Protection of intellectual property;
– Article 16 of the Charter : Freedom to conduct a business;
– Article 8 and 11 of the Charter : Right to protection of personal data and freedom to receive or impart information.
ECHR :
– Article 10 of the Convention : Freedom of expression.
2) As it is written, Article 10 is meant to be applicable to the Internet, as to any other means of communication (See Ashby Donald v. France, §34)
3) ECHR : protection of property written in Article 1 of Protocol 1 adds weight to the balance in favor of Copyrights (See Neij and Sunde Kolmisoppi v. Sweden, p. 10 and 11)
CJEU : Although it is not explicitly referred to in the decisions, we can assume that the property as a fundamental right was taken into account in the balancing. It can be illustrated in the wording of the Court (“Intellectual property right”).
4) It is possible to rely on :
– The protection of the Right to intellectual property;
– The Right to protection of personal data and
– The Freedom to receive or impart information …
… to support the view that Copyrights is a fundamental/human right.
5) ECHR : The balancing is done through a three-step interference test :
– Whether the interference was prescribed by law;
– Whether there was a legitimate aim and
– Whether it was necessary in a democratic society (proportionality test).
CJEU : The balancing is done according to other fundamental rights, which are safeguarded by the Charter.
6) As it appears, the balancing mechanism used by the courts leads to a wide margin of appreciation.
7) Despite the fact that an increasing number of people are using freedom of expression in order to undermine the intellectual property right, the court continuously holds in favor of Copyright as a part of private law.
Bonus Question : In the previous decisions, providers were incriminated whereas, in this decision, the user of such websites is prohibited to use its freedom of expression as shield against Copyright.
Show lessThanks. Why do you write that: “It is possible to rely on :
– …
– The Right to protection of personal data and
– The Freedom to receive or impart information …
… to support the view that Copyrights is a fundamental/human right”? Not sure to understand your view here.
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answers to questions 1 and 7 combined ( but clearly separately appearent in the answer)
On the basis of two cases (Frederik Neij and Peter Kolmisoppi v. Sweden; UPC Telekabel GmbH v. Constantin Film Verleih GmbH), we may underline some fundamental rights that both ECtHR and the ECJ often refer to. We will then discuss the hypothetical move of the copyright from the sphere of private law to the realm of public law.
First of all, the European Court of human rights often relies first, on the freedom of expression and second, on the freedom of information. Both rights are known to be guaranteed by article 10 of the European Convention for human rights which however, does not give them the value of “absolute rights”. Indeed, the Court is often, not to say always, called upon to weigh the different interests. In casu, the balance of interests is aimed to weigh on the one hand, the interest of the applicants to facilitate the sharing of the information and on the other hand, the interest in protecting the rights of the copyright-holders. The Court considers that the Swedish authorities were under the obligation to protect the plaintiff copyrights and that interference in the freedom of expression was necessary in a democratic society. Second of all, the European Court of justice relies on the freedom to conduct a business (art. 16 of the Charter) and the freedom of information (art. 11 of the Charter). As already mentioned for the ECtHR, the “non-absolute” value of those rights is ascertained and a weighing of interests is needed. The measures taken by the States in the aim to protect those rights must be strictly targeted while restricting fundamental rights (in casu, an injunction). Indeed, the intervention must bring an end to illegal uses of the platform but not harm the freedom of information of the users using the platform legally. After having taken those observations into consideration, we may ascertain that fundamental rights are not absolute and may require positive measures of protection by the States which, however, may not harm or reduce fundamental freedoms without justification.
After having developed some general fundamental rights, let’s focus on the copyrights ‘evolution and legal position. Prior to addressing the core elements that this question suggests, we must try to define where the limit between private and public law stands. It is our belief that the traditional dichotomy between private and public law should be retained. Indeed, private law enshrines the relationship between individuals and the legal persons. In the field of intellectual property rights, private law comprises relations between individuals, between individuals and corporation as well as those intervening among corporations. Figured opposite, public law determines the set of rules defining the relationship between legal persons and the state. Nowadays, a sociological and behavioral change can be observed in the private sphere due to the democratization of technologies such as the internet which is geographically unlimited. Consequently, the amount of agents intervening in that sphere has increased, especially when it comes to copyright. Such a progress, in addition to the wide range of agents intervening in the process, has lead to a difficulty for private domestic law to ensure the protection of copyrights and related rights. The Pirate Bay case is a strong example of the impact of the “peer-to-peer” system on copyright law. Hence, this domestic private law gap which includes civil liability had to be filled and, to alleviate the urging need of public intervention, public regulations were inevitable. We can then assert that a movement of copyright from the sphere of private law to the realm of public law has occurred. One question remains, how? Essentially, through the soft law of international institutions, let alone the criminal sanctions associated with copyrights infringements in the domestic legal order. An appraisal of the situation can be done through the European lens. First, the mechanism of article 10 ECHR, which establishes the conditions of a legitimate interference of the state in domestic law. By way of illustration, we can refer to The Pirate Bay case as stated in the first question’s answer. Then, the amount of public regulations has increased at the European level. Moreover, if we take a look at the content of those regulations, we can outline that the movement of copyright from private law to public law has been encouraged by the Council of Europe. Indeed, the member states are more and more invited to intervene in the field of copyright: recommendation CM/ Rec 2007 relied on in The Pirate Bay case recommends the state to “elaborate a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technology”. Finally, we can notice that it is only because the movement of copyright from the private to the public sphere has occurred that its Europeanization could be effective.
Victoria Heinen & Annabel Bassil
Well-thought (and a fluen writing), thanks a lot.
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The expansion of the Internet, as wonderful as it may be, has given means to people to make copyright protected works (be it books, or most commonly music and films) available to the everyday user without the consent of the creators of these works.
The number of cases the national and international courts have to adjudicate is thus growing exponentially with the rise of the Internet.
Most of the time, the jurisdictions have to strike a balance between competing interests : are copyright and related rights absolute ? Or, to say it differently, are intellectual property rights more important than other fundamental rights ?
Both the Court of Justice of the European Union and the European Court of Human Rights see copyright and linked rights as of prime importance.
On the one hand (see : Case C 70/10 Sabam v. Scarlet Extended [2011] ECR I 11959, § 43), the CJEU saw intellectual property rights as inviolable (according to article 17(2) of the Charter).
On the other hand, the ECHR declared that states had to punish but also to prevent any infringement on copyrights or other intellectual property rights (see : Sabam v. Scarlet Extended, § 31).
The provisions most notably used, in this type of case, by the Court of Luxemburg (the CJEU) are articles 2, 5 and 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 while the Court of Strasburg (the ECHR) bases itself on is article 10 of the European Convention on Human Rights.
When a weighting on interests is necessary, intellectual property rights often prevail, as said before. Even though they possess a right to impart as well as receive information, Internet users can witness a cutback on these rights.
For example, “The Pirate Bay” ‘s creators were fined and sentenced to imprisonment because the infringement on copyrights they permitted their network’s users to commit was heavier than the burden it would pose on their freedom of expression (see : Case 40397/12 Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden, 18 February 2013). The ECHR considered it a “pressing social need” (citing one of their previous judgment : Observer and Guardian v. the United Kingdom, 26 November 1991, § 59) to punish this violation of intellectual property right).
Moreover, the freedom to conduct business was also limited with respect to intellectual property rights as a state can force an Internet service provider to block the access on a website (or, at least, make it extremely difficult to achieve this access) which infringes copyrights (Case C-314/12 UPC Telekabel Wien GmbH v. Constantin Film Verleih GmbH, Wega Filmproduktionsgesellschaft mbH, 27 March 2014).
The Internet’s creation and development gave a wider dimension to intellectual property rights, showing the need to make these rules a global “code of conduct”. Nowadays, every democratic society needs these legal rules to work correctly.
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The very aim of European law and of the ECHR is to protect the most fundamental rights of today’s society. The mere fact that Intellectual property is considered to be one of those rights goes without saying. In our ever stretching legal landscape, it seems vital that these rights be ensured. After reading some cases relative to them, I noticed that both the European Court of Human Rights and the Court of Justice of the European Union spend a lot of attention to the process of safeguarding property right holders, but they also seem to seek to protect users. In the SABAM cases, the CJEU ruled that filters were illegal, because they infringe user’s rights.
In the IPC Telekabel case, the Court develops a threefold conflict regarding property right: the rights at stake are, of course, property rights, but also the right to conduct a business and the freedom of information. In this case, the property rights were held by Constantin Film Verheih, the right to conduct a business was brought up by the intermediary, which was internet provider UPC, and the rights of the internet users were held by the court itself. The CJEU ruled that it was the intermediary’s task to make sure the plaintiff’s property rights were respected (Art 17 §2 of the EU Charter on Human Rights), but they had to do this taking the users’ rights into account.
The European Court of Human Rights used a somewhat similar reasoning for its case “Neij and Sunde Kolmisoppi v Sweden”. This case is about the “peer-to-peer” website The Pirate Bay. Its founders allegedly created it to make it easier for internet users to exchange files, but the website quickly became one of the biggest havens of hacked movies, music, etc. This led to the founders being sued, for letting piracy happen. The Court said that even though their freedom of expression right granted by Art 10 of the ECHR technically allowed them to create the network, they hadn’t taken any action in order to restrain piracy from their site, even after their government had required it. The Court, saying that all member states have an important role to play in the restrictions on Art 10, sentenced the founders of The Pirate Bay, thereby preserving the right of both the property holders and the users. Art 10 is applicable on the internet, but there may be restrictions regarding property law.
The balance of fundamental rights by the CJEU was made saying that Art 17 of the EU Charter on Human Rights doesn’t grant an absolute and inviolable right on intellectual property. All measures must be taken in order to discourage users from downloading hacked files, but the measures must be respectful of the people’s right on information. The ECtHR on the other hand tends to declare the right granted by the ECHR as absolute but subject to restrictions, which must be established in the legal order.
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The UPC telekabel’s case concerns a request for a preliminary ruling concerns the interpretation of Article 5(1) and (2)(b) and Article 8(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), and of certain fundamental rights enshrined in EU law. The request has been made in proceedings between UPC Telekabel Wien Constantin Film and Wega Filmproduktionsgesellschaft concerning an application for UPC Telekabel to be ordered to block the access of its customers to a website making available to the public some of the films of Constantin Film and of Wega without their consent.
The Fredrik Neij’s case concerns the two co-founders of the famous torrent-platform that is The Pirate Bay. In Sweden, they were convicted for furthering copyright infringement.
The fundamental rights that are the most often referred to are freedom of expression and information to be balanced with intellectual property rights (here copyright). The Court of Luxembourg refers to article 11 of the Charter and the Court of Strasbourg refers to article 10 of the ECHR. The CJEU talks about the freedom to conduct a business as well (article 16 of the Charter).
For the Court of Strasbourg, in Fredrik Neij’s case clearly states the importance of internet as a means of communication which facilitates access to information for everyone. In addition to that, the court insisted that article 10 of the ECHR protects not only the content but also the means of transmission of the information because this would restrict the possibility to give and receive information.
Both the CJEU and the ECtHR take the protection of property as a fundamental right into account in the balance of interest with other rights such as freedom of expression and information and freedom to conduct a business but their methods are different.
First of all, because the right to property is consecrated in the Charter (article 17) and in article 1 of the additional Protocol to ECHR, the courts have to consider these rights in their balancing.
On the other hand, their ways of reasoning are different:
-The CJEU “has already ruled that, where several fundamental rights are at issue, the Member States must, when transposing a directive, ensure that they rely on an interpretation of the directive which allows a fair balance to be struck between the applicable fundamental rights protected by the European Union legal order”(§46 of UPC Telekabel ).
-ECtHR verifies with respect to article 10 if the restrictions to freedom of expression sanctioned by national courts were prescribed by the law, pursued a legitimate aim, and were necessary in a democratic society.
In our opinion the CJEU’s reasoning is less restrictive, rigid than the ECtHR’s because of its three-conditions-test.
The implications of the test of balancing shows us that the fundamental rights protected such as freedom of expression and information and right to property are not absolute and can be limited.
This also implies that the right to property is no longer solely a private right because the state can impose limitations for general interest.
To conclude, in the UPC Telekabel case the CJEU held in favor of Telekabel’s way of implementing its injunction, while in the Fredrik Neij’s case the ECtHR held against the applicant by considering his demand inadmissible.
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The courts referred to the freedom of expression and the freedom of information, which are mentioned in article 10 of the ECHR. As said by the ECtHR, this article applies not only to the content of the information but also to the means of transmission and reception. So we can deduce that it is applicable to the Internet. Both courts balance the intellectual property protection with the freedom of expression.
There is a difference in the way the balancing is done by the two courts. The CJEU make a balance between three criterias:
– the copyright and related rights
– the freedom to conduct a business
– the freedom of information of internet users
The ECtHR only balance the freedom of expression and the copyright.
We do not think that copyright move from the sphere of private law to the realm of public law. The decisions concerned private parties so we stay in private law.
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FIRST QUESTION : In matter of intellectual property rights, it is mostly the freedom of expression and the right of property that are in stake. In the Strasbourg’s case, the Court has to balance art. 10 of the Convention with art. 1 of Protocol 1. As for the other case, the Court of justice had to balance art. 17 (2) of the Charter and the freedom to conduct business (art. 16 of the Charter). The first one deals with copyrights which are a matter of property while art. 16 is an application of the freedom of expression. Hence, the two courts deal with the same kinds of Human Rights.
QUESTION 2 : The Strasbourg’s case clearly states that art. 10 does not give the same protection for internet information and political expression and debate. These last two are given a higher protection. Therefore, the margin of appreciation is in this case is wider and this is one of the reasons why the Court declared the Swedish authorities decisions proportionate.
QUESTION 3 : The ECHR had to balance art. 10 and art. 1 of Protocol 1 which precisely deals with the freedom of property. In the end, art 1 of Protocol 1 overrides art. 10 so it proves that property as a fundamental right played indeed an important role for the ECHR’s decision. As for the CJEU, the freedom of property as such does not play the same role. However, threw art. 17 (2) of the Charter, we can sense behind copyrights, the right of property. The Court protected this right by saying that a prohibition of accessing protected subject matter placed on the internet and available is authorize if the measures of prohibition do not deprive internet users of the possibility of accessing legal content and if these measures are aim to prevent illegal access or at least make it difficult to. This answer of question 3 of the primarily ruling clearly protected the freedom of property.
QUESTION 4 : As stated below, the Court of Strasbourg implement in art. 1 of protocol 1 (property) copyrights since it used this article to balance the defendant’s and the plaintiff’s rights.
QUESTION 5 : The ECHR checks if the measures that limit a fundamental rights are legal, legitimate and necessary in a democratic society while the CJEU checks if the Member States transposed a directive relying on a interpretation that balances fairly the fundamental rights. This must be interpreted in a way that does not conflict general principles of EU law such as the principle of proportionality. Hence, both methods are a bit difference but conserve the same idea in substance : fairness against the danger of arbitrary.
QUESTION 6 : Member States have to respect the legal content that is directly opposable even though their national law is in conflict with the supranational authority. EU law is above national law and Strasbourg’ interpretation of law is above the National Court’s own interpretation.
QUESTION 7 : In my opinion, the division between private and national law is purely academical and is nowadays outdated. Fundamental rights which is a matter of public protects private rights such as the right of property and thus copyrights. There is no move from a part of the wall to another, there is actually no wall in practice. A case is a matter of concrete facts of life that are to be translated into law to find a democratic solution. The translation is easier with academic divisions such as private/public law but in practice, the judge does not take this into account. Wether is private or public law, the law has to be respected.
Show lessThanks, but I do not understand how you connect art. 16 Charter and freedom of expression.
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When solving copyright cases requires to balance fundamental rights (2/2)
The European Court of Justice does not divide its reasoning as the ECtHR, but simply strike a balance between the fundamental rights at issue. The difference between the two rulings stands in the fact that the ECtHR tries to decide which right should be protected to the detriment of the other in the case, while the ECJ spends more time examining if the measures taken to protect the right are proportionate to the aim and do not unnecessarily deprive another party from his rights. The measures adopted must be strictly targeted and must not require the defendant to make unbearable sacrifices (UPC Telekabel, n°53 and 56).
The idea of balancing rights bears an important implication in the scope of fundamental rights, as it means that these rights are not absolute, not given once and for all ; they can be negociated. Their value can vary according to the circumstances but, also, according to the rights they are weighted against in a given case. The fundamental rights are in the same time brothers and enemies, and their cohabitation involves sacrifices.
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