European courts weigh in on the interaction between intellectual property and (other) human rights

The two highest judicial institutions in Europe – European Court of Human Rights (ECtHR) and Court of Justice of the European Union (CJEU) – recently issued judgments concerning the relationship between intellectual property and human rights. Jurisprudence of the two courts on this issue is relatively scarce, so the two recent additions are worth examining even if they do not open any significant new grounds.

ECtHR – Copyright outweighs commercial speech

The first to speak on the subject in 2013 was the ECtHR, in the judgment of 10 January in the case Ashby Donald and others v. France (Application no. 36769/08). The highest court in France, the Supreme Court of Cassation, confirmed in February 2008 a judgment of the Paris Court of Appeals ordering three fashion photographers to pay a total of 274,000 EUR to fashion houses and their association, Fédération Française de la Couture, for the unauthorized reproduction and dissemination (diffusion) via internet of the photos of fashion creations and fashion shows. The photographers turned to the ECtHR with a claim that France violated their freedom of expression, protected under Article 10 of the European Convention on Human Rights (“Convention”). The ECtHR, however, found no violation of Article 10.

It is baffling that some partisans of contraction, or outright elimination, of copyright found the ECtHR judgment to be an encouraging development. The founder of the Swedish Pirate Party, Rick Falkvinge, went so far as to describe the judgment as saying that convictions for file-sharing violate human rights. The Court said no such thing.

If anything, the ECtHR confirmed a strong protection of copyright under the European human rights regime, by re-stating that copyright is a human right and that its protection may justify a government’s interference with other human rights. In the case, the French fashion houses and the Fédération Française de la Couture owned copyright in the outfits and fashion shows, and this copyright outweighed the photographers’ right of freedom of expression.

The French government, i.e. the French judiciary, interfered with the freedom of expression by limiting that freedom for the purpose of enforcing copyright laws. Exercise and enforcement of various human rights often interfere with enjoyment of other rights – the right to privacy with the freedom of expression, for example – and intellectual property rights are no exception to this dynamics. “Interference”, however, should not be confused with a right’s “violation”. Interference, inherently a neutral concept, grows into a violation only if one of the following is present: the interference is not prescribed by law; it does not pursue a legitimate aim; or, it is not necessary in a democratic society.

In the specific case, the ECtHR found no violation of the freedom of expression, because the French courts’ enforcement of copyright legislation was prescribed by law (para. 36 of the judgment), did pursue a legitimate aim by protecting the rights of copyright owners (ibid), and was necessary in the democratic society, because it was proportionate to the legitimate aim pursued (paras. 37-44).

The Court’s finding of the proportionality of the interference rests on two related grounds: one is the relative weakness of the Convention right purported to be infringed, and the other is the strength of the interest protected by the interference. The three photographers claimed that their use of the photos beyond the scope authorized by the fashion show organizers was justified by the freedom of expression, i.e. that the photographers disseminated information about a subject of general interest (para. 26). The ECtHR rejected that argument, because the expression at issue was for strictly commercial purposes and in actuality it did not contribute to any debate of general interest (para. 39).

Conversely, the interest the government sought to protect was strong: it even amounts to a human right guaranteed by the Convention or its Protocols (para. 40 of the judgment). The ECtHR referred to its landmark judgment in the case Anheuser-Busch Inc. v. Portugal (Application no. 73049/01) (2007), in which the Court’s Grand Chamber unanimously held that Art. 1 of Protocol I to the European Convention on Human Rights and Fundamental Freedoms applies to intellectual property as such. Art.1 (“Protection of property”) of the Convention provides:

(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

In summary: Ashby Donald and others v. France does little more than express in human rights terms the rules which contemporary copyright regimes already put into practice: copyright enjoys strong protection, which can only be relaxed when other interests of similar or greater significance pull into a different direction. These countervailing forces include artistic expression, reporting on current events, parody, criticism, research or private study, political speech, and other cases often mentioned in national and international legal instruments, in the chapters about exceptions or limitations to copyright. Unauthorized use of copyright for purely commercial reasons falls outside the scope of permissible exceptions or limitations.

CJEU – Exclusive broadcasting rights acquired contractually are not property rights, due to specific circumstances

Prior to 22 January 2013, the day in which the CJEU rendered the judgment in Sky Österreich GmbH v Österreichischer Rundfunk (Case C‑283/11), it seemed that the CJEU would also examine the relationship between an intellectual property right and other fundamental rights and freedoms. Bundeskommunikationssenat, a body set up at the Austrian Chancellery, which referred the case to the Court, believed a tension between the two sets of rights existed. This belief was clearly shared by the E.U Advocate General, Yves Both, who in his Opinion from June 2012 framed the issue as “whether … the EU legislature achieved a fair balance between the right to property and the freedom to conduct a business, on the one hand, and the freedom to receive information and media pluralism, on the other” (para. 45 of the Opinion).

The CJEU, having looked into the matter, concluded that no right protected by the Charter of Fundamental Rights of the European Union (“Charter”) or Protocol I to the European Convention on Human Rights and Fundamental Freedoms (“Protocol”) was involved, so no violation occurred. The finding is based on a rather unique set of facts, so its precedential value may be limited.

The contentious issue in the case concerned a provision in the so-called Audiovisual Media Services Directive (Directive 2010/13/EU) of the European Parliament and of the Council, of 10 March 2010, whereby, for the purpose of short news reports, any broadcaster established in the E.U. may use short extracts from material transmitted on an exclusive basis by another broadcaster, when the event is of high interest to the public. Compensation to the transmitting broadcaster may “not exceed costs directly incurred in providing access” and Member States may decide that no compensation should be paid (Article 15 of the Directive).

Sky Österreich GmbH (“Sky”), one of the parties in the proceedings in Austria, acquired from the Union of European Football Associations (UEFA) exclusive rights to broadcast Europa League matches in the 2009/2010 to 2011/2012 seasons in Austrian territory. Sky granted Österreichischer Rundfunk (Austrian Broadcasting) the right to produce short news reports in exchange for a fee of EUR 700 per minute. Österreichischer Rundfunk complained to the Austrian communication regulatory authority, which decided that Sky was not entitled to demand remuneration greater than the costs directly incurred in providing access. Such additional costs did not exist in this case, so Österreichischer Rundfunk was not to pay any compensation to Sky. Sky appealed this decision to Bundeskommunikationssenat. (Österreichischer Rundfunk also appealed, on other grounds).

In its order for reference to the CJEU, Bundeskommunikationssenat considered the exercise of exclusive broadcasting rights by Sky to be protected by Articles 16 and 17 of the Charter, as well as Article 1 of Protocol I. Bundeskommunikationssenat asked the CJEU whether Article 15(6) of Directive 2010/13 was compatible with Articles 16 and 17, i.e. with Article 1.

Article 16 of the Charter recognizes the freedom to conduct a business. Article 17 protects intellectual property in a way similar to Article 1 of Protocol I:

  1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.
  2. Intellectual property shall be protected

Article 15(6) of the Audiovisual Media Services Directive prevents the authorities of a Member State from providing for compensation (beyond costs) for the use of short extracts from a broadcaster’s program. The CJEU was asked to decide whether such interference with Sky’s exclusive broadcasting rights was proportionate, i.e. whether it remained within the “limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question” (para. 50 of the judgment).

With respect to Article 17 of the Charter, however, the Court reasoned that, against the specific facts, the guarantees provided in paragraph 1 of the provision did not extend to audiovisual broadcasting rights acquired contractually. This part of the CJEU judgment is rather convoluted and departs from the reasoning of the Advocate General, Yves Bot, who did not question the status of the broadcasting right in question as a property right.

As already mentioned, Sky had acquired exclusive broadcasting rights by means of a contract. The acquisition occurred in August 2009. At the time, Directive 2007/65/EC of 11 December 2007, which preceded the Audiovisual Media Services Directive, had been in place and contained a prohibition of compensation. The CJEU concluded that, although the acquired broadcasting rights “have asset value” (para. 35), they do not fulfill an additional condition in order to be protected by Article 17(1) of the Charter – i.e. they do not create “an established legal position under the legal system, enabling the holder to exercise those rights autonomously and for this benefit” (para. 38, referring to para. 34 of the judgment). Because of the prohibition of compensation already contained in Directive 2007/65/EC, Sky could not “exercise its broadcasting right autonomously”, which means that it had not established legal position on which it could rely (para. 39).

The Court did not separately address Article 17(2) of the Charter (“Intellectual property shall be protected”). That part of Article 17 is generally understood to have no separate, i.e. additional, meaning apart from the meaning already encountered in Article 17(1) in its application to intellectual property. The CJEU also spent no time examining potential violation of Article 1 of Protocol I, because the right of property protected by the Protocol has the same meaning and scope as under Article 17 of the Charter. (By way of explanation: Although the Convention on Human Rights and Fundamental Freedoms, and its Protocols, are instruments enacted within the ambit of another organization – the Council of Europe – the CJEU considers them applicable at the E.U. level as general principles of the union’s law.)

In the part of the judgment concerning Article 17 of the Charter, the CJEU did not examine whether Article 15(6) of the Audiovisual Media Services Directive satisfied the principle of proportionality. A proportionality analysis was inapplicable because the Court refuted the argument that the broadcasting right at issue was a property right, so there were no two fundamental rights interfering with each other.

The Court also found no violation of Article 16 of the Charter, but that part of the judgment does not contain arguments of immediate significance to intellectual property matters, so it will not be analyzed here.