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Freedom of expression and the right to information: Implications for copyright

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... In particular, it has been asserted that access to knowledge needs to be protected and promoted by the law, because it leverages economic development and social cohesion (International Federation of Library Associations and Institutions and Technology and Social Change Group 2017, 2019). Accordingly, a number of scholars have called for the recognition of rights of non-commercial access and use of protected works within the system of copyright law (Cotter 2010;Voorhoof 2015;Koren 2017;Geiger 2018). According to the normative perspective taken in this study, legal rules for the regulation of commercial and non-commercial use of intangible resources should differ for ethical and political reasons. ...
Book
At the cutting edge of contemporary wealth creation people form self-governed communities of collaborative innovation in conditions of relative equipotency and produce resources with free access to all. The emergent intellectual commons have the potential to commonify intellectual production and distribution, unleash human creativity through collaboration and democratise innovation with wider positive effects for our societies. Contemporary intellectual property laws fail to address this potential. We are, therefore, in pressing need of an institutional alternative beyond the inherent limitations of intellectual property law. This book offers an overall analysis of the moral significance of the intellectual commons and outlines appropriate modes for their regulation. Its principal thesis is that our legal systems are in need of an independent body of law for the protection and promotion of the intellectual commons, in parallel to intellectual property law. In this context, the author of the book proposes the reconstruction of the doctrine of the public domain and the exceptions and limitations of exclusive intellectual property rights into an intellectual commons law, which will underpin a vibrant non-commercial zone of creativity and innovation in intellectual production, distribution and consumption alongside commodity markets enabled by intellectual property law.
... See also Geiger and Izyumenko (2014 Geiger and Izyumenko (2014). See also Strowel (2014); Voorhoof (2015). More generally on copyright and FoE before the ECtHR, see Izyumenko (2016); and Geiger and Izyumenko (2018), p. 9. 68 See Geiger (2006); Griffiths (2013); Mylly (2015). ...
Article
In the first part of the new millennium, the rise of the use of fundamental rights in shaping and using intellectual property norms has led one of the authors of this article to predict that this movement will be “constitutionalizing” intellectual property law. More than a decade and a half later, the influence of fundamental rights on the scope and limitations of intellectual property has never been more important, as illustrated by three seminal copyright decisions (in the Funke Medien, Pelham and Spiegel Online cases) delivered in July 2019 by the Court of Justice of the European Union. These decisions, dealing with the relationship between copyright and freedom of expression (including freedom of the media, information, and freedom of artistic creativity), stand out in the European judicial practice on copyright and fundamental rights for a number of reasons. First, freedom of expression and its balancing factors play a crucial role in shaping the contours of the exclusive rights, starting from the definition of copyright law’s subject-matter and extending to the right of reproduction, as well as – most importantly – to copyright limitations and exceptions. In essence, the CJEU takes a quite liberal position towards the national courts’ interpretation of existing copyright norms in the light of the freedom of expression requirements. The CJEU goes even as far as to term the Art. 5 InfoSoc exceptions not as “exceptions” as such but as self-sufficient rights of users of copyright-protected subject-matter. It is also notable that, in applying freedom of expression to EU copyright, the CJEU has largely relied on the case law of yet another supranational European court – the European Court of Human Rights – manifesting eagerness to engage in a “dialogue” with the principal human rights tribunal in Europe in order to establish guiding principles for EU copyright law informed by freedom of expression. Such a liberal, “freedom-of-expression-driven” approach of the CJEU to the interpretation of EU copyright appears quite analogue in results that could be reached by applying an external and/or open-ended copyright exception. Nevertheless, the Luxembourg Court indicates in Funke Medien, Pelham and Spiegel Online that an externally introduced flexibility (by means of complementing that already existing in the EU list of exceptions) could be harmful to copyright harmonization and legal certainty. Therefore, despite having taken a more favourable position on the possibility of shaping EU copyright by fundamental rights norms, the CJEU does not go all the way, since it considers in quite categorical terms that an external freedom of expression exception beyond the exhaustive list of limitations of Art. 5 InfoSoc is clearly inacceptable. According to the Court, copyright’s own internal mechanisms present sufficient safety valves for balancing with freedom of expression. Such a position of the CJEU that relies on the fact that the legislature has anticipated all the potential conflicts between copyright and higher ranking norms such as fundamental rights might be incompatible with the EU legal order. Thus, despite visible progress in flexibilizing copyright norms via their interpretation “in the light of” fundamental rights, some further steps will still need to be taken in the future to make the “constitutionalization” of IP law a complete reality in the EU.
Book
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La rivoluzione digitale ha portato alla nascita di un nuovo modello economico in cui i dati e la conoscenza in generale si attestano come la più promettente risorsa dell’era postindustriale. Nel concetto di conoscenza è insito un conflitto di fondo. Da un lato, l’interesse privato a capitalizzarne il valore, che rende strategica la pro- prietà intellettuale come forma di controllo del sapere. Dall’altro, l’interesse gene- rale a riservare al pubblico dominio – ovvero alla libera fruizione collettiva – una parte sostanziale del capitale intellettuale e semantico e del patrimonio culturale. L’economia di rete, fondata sulla condivisione di conoscenza, soffre oggi un gap di contenuti di pubblico dominio. Appena il 10% del patrimonio culturale europeo è digitalizzato e meno della metà è accessibile in rete e disponibile per il riutilizzo.A risponderne è in primo luogo il diritto che stenta a riconoscere tutela alle istanze diaccesso aperto ai beni comuni. La presente monografia guida il lettore attraverso le varie aree del diritto che contribuiscono a restringere il perimetro del pubblico dominio. Il volume spazia dal diritto d’autore, al regolamento a tutela dei dati personali, dal codice dei beni culturali, alla recente proposta di Data Governance Act. Conclude, infine, che nell’equo bilanciamento tra gli interessi in conflitto, ogni con- sociato dovrebbe vantare un diritto soggettivo alla libera utilizzazione dei beni immateriali che compongono il pubblico dominio: un “diritto al pubblico dominio”
Preprint
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Without any doubt, important investments are often needed to generate creative outputs. However, the intellectual property (IP) system does not protect them as such; investments are only indirectly protected through the possibility to exploit and monetize the rights granted to a creator as a counterpart to the collective enrichment generated by the access to his new work. If the investment (however substantial) does not lead to a creative output, no protection is granted. This short opinion article tries to demonstrate that the progressive paradigm shift of intellectual property to an investment-protection mechanism is probably at the core of most of the current problems faced by the IP system. The very much debated question whether copyright can be granted to an AI-generated output is a good example. The classical author-centered approach of the IP system is rather straightforward: only humans can be creators. However, if you consider IP as an investment-protection mechanism, then it is not illogical that the investor in the AI could be considered the sole beneficiary of IP protection, even without any human intervention. This paper argues that in order to regain its proper function, its fair balance and its social acceptance, a progressive elimination of the investment protection rationale in intellectual property law is needed. Having IP undergo such an arguable radical therapy is possible and could be done by a proper constitutional framing of IP within the right to science and culture or even freedom of expression. It would give help shaping an ethical framework for IP by both safeguarding the link between the creators, their productions and society, while at the same time enabling the originators of the creative output to receive fair remuneration for work. In this short opinion article, we would like to argue that the equation between intellectual property (IP) and investment protection is (and has always been) misleading and is probably at the core of most of the current problems faced by the IP system and its enforcement. The
Article
The present work offers a taxonomy that organizes the interactions between human rights and intellectual property. Three main patterns of interaction occur between the two sets of rights: “Recognition” takes place when the law elevates intellectual property to the ranking of human rights, “conflict” when intellectual property and human rights interfere with each other and “cooperation” when they operate synergistically. While these three broad categories are known to commentators, the research further divides them into several subcategories. Each of them shows unique characteristics and features, which are validated through empirical data. This leads to a taxonomy with multiple levels of complexity which better conceptualizes the multiple interactions between intellectual property and human rights, and expands our understanding of the relationship between the two systems.
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This paper is an updated version of the chapter entitled “Reconceptualizing the Constitutional Dimension of Intellectual Property” which appeared in the previous edition (3rd) of the volume edited by Paul Torremans entitled “Intellectual Property and Human Rights”. It draws on previous research published by the author on the ongoing “constitutionalization” of intellectual property rights through the increasing use by legislators and courts of human rights to shape the contours of the exclusive rights. The paper incorporates the most recent judicial developments at EU level which confirmed the full validity and legitimacy of the use of fundamental rights to interpret and adapt IP laws. Drawing on these developments, it advances several proposals in order to construct a satisfying and balanced clause for IP at constitutional level, demonstrating thus a closer connection to the interests of society. First, the chapter proposes to link IP with the universally recognized right to culture and science, thereby mirroring a solution adopted at international and national levels in several countries. Second, it explores the protection that could be offered by the constitutional right to freedom of expression and information. Finally, the inclusion of IP within the protection of property at the constitutional level is analyzed. It is demonstrated that the link with the property provision often guarantees that the social function of this right is extended to intellectual property. When combined with the proportionality principle that mandates a fair balance between competing fundamental rights, intellectual property is far from absolute and can on the contrary be limited by the interest of the society at large.
Article
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It is often claimed that an open-ended provision for copyright limitations such as the US fair use clause would be unfit for civil law countries because of their author-centered traditions of copyright law and their traditional skepticism towards "judge made law" encouraged by open norms. However, the rising application in those countries of fundamental rights by the judiciary to solve copyright cases (mainly based on freedom of expression and information) and the balancing of interests it requires resemble in many aspects the practice of common law jurisdictions and the weighing of factors typically done in the context of a fair use analysis. As a consequence, this article argues that some sort of "fair use" is already a reality in Europe; therefore, the debate should shift from the question of the compatibility of an open-ended copyright limitation with the European legal system to the question on how to draft a "fair use" provision that would better fit the European legal tradition. In order to do so, the paper analyses in detail the judicial application of the freedom of expression's test of proportionality to IP disputes. It further demonstrates that, by providing for a developed list of fairness factors analogous to those of the US fair use, the courts have developed appropriate and functioning criteria to assess the legality of a copyright use, which, once systematized, could serve as a European open-ended copyright limitation. Since in Europe a clause analogous in openness and flexibility to the US fair use provision is lacking, the article advocates the legislative incorporation of an open-ended clause grounded in freedom of expression in EU copyright law in order to enhance clarity, transparency and legal security, and concludes with a drafting proposal for such a provision.
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In order to enable future creativity, some uses are traditionally kept outside the control of the right owner through limitations to the exclusive right. Uses covered by a limitation can lead to an obligation to pay a fair remuneration to the creator. In these cases, these “limitation-based remuneration rights” are often called “statutory licenses”. As these remunerations can provide significant revenues for creators, they constitute interesting tools for legislators in order to avoid the blocking effect of exclusivity, while at the same time ensuring that the creator can participate fairly in the creative reuse of their works. However, this option has so far been given relatively little consideration in the context of derivative works. This chapter is intended to fill that gap, exploring whether statutory licenses can offer a satisfying mechanism to enable and incentivize creative uses of copyrighted works.
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