Research Handbooks in Intellectual Property series
Edited by Christophe Geiger
Chapter 17: Freedom of expression and the right to information: Implications for copyright
Judge Dean Spielmann, since September 2012 the president of the European Court of Human Rights (ECtHR), observed in 2012 that the ECtHR’s case law on the issue of copyright and freedom of expression was ‘scant’. A short time later however, this observation was no longer valid. On two occasions, in January and February 2013, the ECtHR has significantly elaborated on the issue. Most importantly, the Court made clear that the application and enforcement of copyright law has to respect the right to freedom of expression and information as guaranteed by Article 10 of the European Convention on Human Rights (ECHR). The European Court’s judgment in the case Ashby Donald and others v. France of 10 January 2013, and its decision in Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden of 19 February 2013 which concerns the case of The Pirate Bay, have undoubtedly created a ‘revived interest in the relationship between copyright and freedom of expression’. The recent case law of the European Court confirms explicitly that the right to freedom of expression and information can act as an external constraint on the scope of copyright protection and remedies for infringement. In the case regarding The Pirate Bay the ECtHR recognizes that the applicants’ convictions based on the Swedish Copyright Act, interfered with their right to freedom of expression, considering that ‘such interference breaches Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in Article 10(2) and was “necessary in a democratic society” to attain such aim or aims’.
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