The recent Donald Ashby (sub nom Ashby Donald) decision of the European Court of Human Rights has revived interest in the relationship between copyright and freedom of expression. The litigation arose because two of the defendant photographers had put on their US website pictures taken by the third at the Paris fashion shows. Under French law that requires the permission of the couture houses. The highest French Court had confirmed their conviction for criminal copyright infringement.
The photographers lost their appeal to the Human Rights Court. But despite the loss the Court’s decision does finally explode any residual myth that copyright has no impact on freedom of expression.
Article 10 of the European Convention on Human Rights protects freedom of expression as a qualified right. In Ashby the Court explicitly held that the appellants’ activities fell within the exercise of the right of freedom of expression and that the conviction interfered with that. It was therefore necessary to consider whether the interference was justified. However the Court held that in this particular case it could not find that either the photographers’ conviction or the financial penalties were a disproportionate interference. Particular account had to be taken of the Contracting State’s broad margins of appreciation for both commercial speech and the protection of rights of others.
Ashby provides a good opportunity to review the various ways in which copyright and freedom of expression can interact. Some have asserted that copyright and freedom of expression exist on different planes which do not intersect at all. In 2000 Mance L.J. said in Hyde Park Residence Ltd v Yelland: “Copyright does not lie on the same continuum as, nor is it the antithesis of, freedom of expression.”
18 months later Lord Phillips, giving the judgment of the whole Court of Appeal in Ashdown v Telegraph Group Ltd, said the opposite: “Thus copyright is antithetical to freedom of expression. It prevents all, save the owner of the copyright, from expressing information in the form of the literary work protected by the copyright.”
The US Supreme Court in Golan v Holder has recognised that “some restriction on expression is the inherent and intended effect of every grant of copyright.”
Some have argued that, even accepting that copyright does interfere with freedom of expression, the necessary balance between that and other legitimate interests is struck entirely internally within copyright legislation. Copyright is therefore not susceptible to external human rights scrutiny.
In England that argument was put to rest in Ashdown. If any doubt remained at a European human rights level, Ashby has put paid to it. As a matter of EU law, the CJEU in SABAM v Scarlet has stated that intellectual property rights are neither inviolable nor must be absolutely protected, but must be balanced against other fundamental rights including freedom of expression.
Ashby on its facts was an obvious interference with the photographers’ Article 10 rights, even if the ECtHR was unable to find the interference disproportionate. The defendants had put the photographs of the Paris catwalk shows on their public website. The fashion houses were using copyright to try to limit and control public dissemination of images of the shows. The engagement with the right to receive and impart information is clear.
Copyright can engage freedom of expression more subtly. Depending on the scope of copyright and the nature of the remedies against infringers (or in some cases even against non-infringers), when applied to any particular set of facts there are many ways in which copyright can step over the line and disproportionately interfere with Article 10 rights.
It is difficult, perhaps impossible, to identify clear dividing lines between proportionate and disproportionate interference. This is partly because copyright is itself regarded, at least in European human rights law, as a property right that has to be weighed in a balancing exercise with other rights such as freedom of expression. It is also because the degree of interference may result not just from one aspect of copyright, but from the combination of several; and because the impact depends on the factual circumstances of each individual case.
Different features of copyright can engage freedom of expression on different axes. In this sense copyright can perhaps be likened to a mixing console, on which each aspect of copyright that potentially engages freedom of expression is represented by a slide control. One control set to maximum may itself be disproportionate, either per se or in its application to a particular set of facts. Equally the combined effect of several controls set to less than maximum could also be disproportionate.
Take the example of an “originality” slide control. If the slider were set at a level that restricted the use of high level ideas as well as detailed expression, then the interference with the Article 10 right might be disproportionate in itself; but even if not, the interference would be that much the greater if the remedy for infringement were an injunction preventing publication as opposed to than a small amount of monetary compensation that permitted continuing dissemination.
Rather than attempt to identify a clear line between proportionality and disproportionality, or examine how rights should be balanced against each other, this article aims to do no more than describe the mixing console: identify each slider whose movement up or down the scale is capable of engaging Article 10 rights to a varying degree.
The focus of this article is on engagement with freedom of expression and nothing else. Arguments of all kinds can be deployed for and against particular aspects of copyright. No given argument necessarily has anything to do with freedom of expression. If does not, it won’t feature here.
We should not forget some less prominent creatures of statute such as legislation prohibiting circumvention of copyright protection measures, and EU database right (which is turning out in some respects to be more restrictive than copyright). However for the sake of simplicity this article is limited for the most part to copyright. It is written largely from a UK perspective. Copyright in other countries may differ.
The copyright and freedom of expression mixing console
Article 19 of the Universal Declaration of Human Rights states:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
In short, the fundamental right of free speech relates to the free flow of ideas, opinion and information.
Our first group of slide controls concerns the extent of copyright and its interaction with each of these three aspects of freedom of speech.
Slider 1: From Expression to Ideas
It is a truism, if not always an illuminating one, that copyright protects expression and not ideas. Jacob J. (as he then was) cautioned in IBCOS Computers Limited v Barclays Mercantile Highland Finance Limited  FSR 275 that while merely taking a sufficiently general idea does not infringe, to take a detailed “idea” may do so. It is a question of degree.
Wherever and however fuzzily this line may be drawn, one reason why it exists is the recognition that all expression, however original, owes something to what has gone before –and the more general the previous knowledge the more likely it is to do so. To insist that all expression should embody only completely original ideas, shorn of anything that has gone before, would be to require silence. If we were to push the expression/idea copyright slider too far, the babble of voices would gradually diminish to nothing. Well of course it wouldn’t, since such a law would lose all legitimacy long before silence fell. But the serious point is that the idea/expression slide control engages freedom of expression more intensely towards the ideas end of the scale.
The proposition that the idea/expression dichotomy engages freedom of expression was recognised in, for instance, the US Supreme Court decision in Eldred v Ashcroft:
“… copyright law contains built-in First Amendment accommodations. … First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. … As we said in Harper & Row, this idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression. … Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.”
At the other end of the scale it may be said that if expression is protected too narrowly, then creativity is inhibited through lack of sufficient incentive to multiply its fruits. This is a common enough argument. Copyright was described in the Harper & Row decision of the US Supreme Court as ‘the engine of free expression’. This argument engages a fundamental right of freedom of expression only if one regards the State as having a positive obligation to promote freedom of expression, as opposed to simply refraining from interference with it.
Slider 2: From Expression to Opinion
The right of freedom of expression is most robustly protected by international human rights law when opinion, especially political opinion, is at stake. So European human rights law has developed a hierarchy in which individual political expression is more robustly protected than, say, commercial speech. As reiterated in Ashby, the ECHR allows Contracting States a greater margin of appreciation (i.e. allows them more latitude to interfere) with commercial speech.
The potential for copyright to interfere on the opinion axis is high, even when an element of expression is taken. Hence the existence of various exceptions for activities such as criticism and review and for parody. These define circumstances and conditions in and under which it is legitimate to take some element of expression. However, specific exceptions are not always adequate. In the USA the more flexible fair use defence is recognised as an essential part of copyright’s accommodation with the First Amendment:
“We then described the “traditional contours” of copyright protection, i.e., the “idea/expression dichotomy” and the “fair use” defense. Both are recognized in our jurisprudence as “built-in First Amendment accommodations.” (Golan v Holder)
In Europe, for political expression direct recourse has sometimes successfully been made to external Article 10 considerations. In the Netherlands the Nadia Plesner Darfurnica case, although it concerned Community design right rather than copyright, is an example of freedom of political expression trumping the exercise of an intellectual property right.
Slider 3: From Originality to Facts
Works of authorship – literary, artistic, dramatic and musical works - attract copyright only if they are original.
Originality is closely related to infringement. For instance the infringement test as formulated by the EU Court of Justice in Infopaq is whether a part of the author’s own intellectual creation has been taken.
So the level at which the threshold for originality is set affects not only whether a work is protected at all by copyright, but what kind of use of the work the copyright owner can prevent. The degree of use that can be prevented is also affected by whether the infringement threshold is, for instance, the taking of any part or the taking of a substantial part.
Where the work contains factual information, a low originality threshold can protect not just the author’s form of expression, but the facts themselves. Facts are at the most basic level of information that humans may wish to impart or receive. The extract from Eldred v Ashcroft quoted above makes clear the engagement with freedom of expression.
A low originality threshold may overly restrict the ability to recommunicate facts imparted through the means of a copyright work. The potential for this consequence is why exceptions exist such as fair dealing for the purpose of reporting current events. These may be quite limited. For instance in UK law the exception does not apply to photographs.
Beyond copyright the ability to recommunicate facts is increasingly restricted by database right, which is specifically aimed at protecting otherwise unprotectable collections of data. Database right has few exceptions, an investment rather than an originality threshold and (as currently interpreted by the courts) hair trigger infringement criteria.
Slider 4: From Dissemination to Reference
Copyright has always sought to prevent the dissemination of infringing copies. It has typically stopped short of preventing people from referring to the existence of infringing material, whether in a library index, in a footnote to an article, in a newspaper or whatever.
When copyright, in its enthusiasm to prevent the spread of infringing copies, seeks to prevent people from acknowledging their existence or pointing to where they may be found, it engages the right of freedom of speech.
In the digital and online world it does so most clearly when it seeks to characterise linking and similar acts as infringement, or bears on the creation and use of search engines. For activities such as image or video search the engagement may take on further aspects, for instance if effective referencing depends on the ability to make and store a thumbnail of the image or of a frame of video.
Slider 5 From Zero to Perpetuity
It is difficult to identify any particular duration of copyright that triggers engagement with freedom of expression; although if it is accepted that any copyright protection necessarily affects freedom of expression, then the longer the duration the greater the interference. The longest durations of copyright tend to give rise to significant orphan works issues - an especially visible engagement with the freedom to receive information.
Attempts in the USA to challenge copyright extensions on First Amendment grounds have not fared well. In Eldred v Ashcroft term extension to life plus 70 years involving resurrection of expired copyright for some works was held not to offend against the First Amendment. In Golan v Holder introduction of copyright for foreign works previously in the public domain was held not to violate the First Amendment.
Our second group of slide controls concerns who infringes and by doing what.
Slider 6 From Suppliers to Users
The wider the net of infringement is thrown, the greater the scope for copyright to engage with freedom of expression.
Traditionally copyright tended to concentrate on plagiarists or creators who ‘overborrowed’ from the work of others and on manufacturers and distributors.
Copyright bit hard on those at the head of the duplication supply chain: the owners and operators of printing presses, vinyl pressing plants, CD manufactories. It bit less hard on the middlemen between them and the final purchaser. In general they infringed only if they knew they were dealing with infringing copies.
At the point of retail sale it was not an infringement to purchase an infringing item. Even less was it an infringement to read or view an infringing item. Pre-digital, the burden of determining what was and was not infringing was thought not appropriate to place on the user of copyright works.
Digital technology has changed all that. The ubiquity of temporary and transient copies within user devices has provided the opportunity to argue that mere enjoyment of copyright works can infringe, and on a strict liability basis at that.
Enjoyment as infringement is in broad terms the issue currently before the UK Supreme Court in Meltwater (sub nom Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Limited and others). It is a telling indication of how far things have moved in the digital era that the judge at first instance in that case was able to say that the temporary copies exception “cannot have been intended to legitimise all copies made in the course of browsing or users would be permitted to watch pirated films and listen to pirated music.” (emphasis added)
Users and consumers are the least well equipped to determine whether something is protected by copyright, whether the purpose for which it is to be used requires authorisation, and if so whether it is authorised or not. In human rights terms, placing such a liability burden on the user may chill the right of freedom of expression. since the user may be deterred from legitimately accessing information and knowledge.
Slider 7 From Participation to Facilitation
This issue concerns the degree of participation in an infringing activity necessary to be regarded as an infringer. Imposing liability on those who volitionally do the act or cause it to be done is (questions of strict versus fault-based liability apart) uncontroversial. But if liability is extended to those who merely facilitate or enable an infringement, that is likely to have an impact on legitimate activities which otherwise promote the dissemination of lawful material. The right of freedom of expression is consequently engaged.
Similar issues arise where accessory liability rules (such as those of joint tortfeasorship) impose liability on one person for the infringing act of someone else. The English courts have tended to draw a reasonably clear line between facilitation or assistance (non-liable) and involvement of a kind that makes the other person’s infringement one’s own (liable).
A particular area of potential conflict concerns online intermediaries. Conduits, hosts and other similar entities are the engines that drive the free flow of information on the internet. As platforms and pipes they can be regarded as facilitators. Many seek to characterise them as profiting from infringement and duty bound to prevent the use of their services by infringers. Regardless of the rights and wrongs of that debate, it has long been recognised that placing liability burdens on intermediaries has the potential to interfere with freedom of expression. This was specifically recognised in Recitals (9) and (46) of the Electronic Commerce Directive, which provided liability shields for conduits, caches and hosts.
Potential, as much as actual, risk of liability is capable of engaging with freedom of expression if a liability regime incentivises the removal of material that may not in fact infringe. This is often raised as an issue with ‘notice and takedown’ regimes.
Slider 8 From Copying to Communicating
It is natural to think that copyright is about copying. Indeed it is, but not only so. A whole range of acts restricted by copyright now exists. Some types of restricted act are more prone directly to engage freedom of expression than others. One of the most obvious is communication to the public, especially when deployed against linking.
Sir Tim Berners Lee said in the early days of the Web:
“The first amendment to the Constitution of the United States … addresses the right to speak. The right to make reference to something is inherent in that right. On the web, to make reference without making a link is possible but ineffective - like speaking but with a paper bag over your head.”.
The question of linking as infringement is a live issue. It is the subject of the current Svensson reference to the CJEU, in which some rights owners are asserting a right to prevent others from linking without permission to authorised copyright material on their own sites.
The right of freedom of expression is also engaged in the context of links to unauthorised material. Cases such as Newzbin in the UK have held that at least in certain behavioural contexts some kinds of linking can amount to infringement by unauthorised communication to the public of the linked-to material.
The third group of sliders concerns Remedies
The degree of interference with freedom of expression is not just a question of liability, but also of remedies. The appellants in Ashby complained separately about the conviction for copyright infringement and the amount of the financial penalties.
Slider 9 From Pennies to Prison
The nature of any remedy enforcing an aspect of copyright that engages freedom of speech will bear on the proportionality of the interference with freedom of speech. Here we simply list some relevant factors in assessing the proportionality of remedies against infringers:
- Criminal versus civil liability.
- For criminal liability: imprisonment versus fines.
- Compensatory awards versus aggravated, exemplary or punitive damages.
- Compensatory awards versus fixed (statutory) damages.
- Injunctions against future dissemination and the penalties for breach of an injunction.
Slider 10 From Targeted to Scattergun
Remedies that are not limited to the dissemination of infringing material, but have the potential to interfere with access to legitimate non-infringing material or activities, engage the right of freedom of expression in a particularly direct manner. Suspension or termination of internet access is one obvious example.
The engagement is more apparent when remedies are made available against parties such as intermediaries who do not infringe or, if the law does provide that they infringe, for whom freedom of expression is acutely engaged as a result of the nature of their activities (see Slider 7).
The CJEU in SABAM v Scarlet held that broad indefinite filtering injunctions against internet access providers (and against hosts in SABAM v Netlog) were incompatible with the freedom of expression rights of users of the services:
“that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications.
Consequently, it must be held that, in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other."
Where the site requested to be blocked is unrepresented before the court and the defendant ISPs do not contest the injunction, procedural safeguards may be relevant to ensure that the court is fully equipped to evaluate the implications for freedom of expression of internet users.