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"Reconceptualizing the Constitutional Dimension of Intellectual Property -An Update", in: P. Torremans (ed.), “Intellectual Property and Human Rights”, 4th ed., Austin/ Boston/ Chicago/ New York, The Netherlands, Kluwer Law International, 2020, 117-167.

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This chapter discusses the evolution in jurisprudential understanding of the relationship between copyright and freedom of artistic expression in the European Union. It demonstrates how courts in France and several other EU member states have accepted a “fair use” approach that applies fundamental rights as external limitations to copyright law, in compliance with the case law of the European Court of Human Rights but contrasting with the recent conflicting position of the Court of Justice of the European Union. The chapter first analyses the application of freedom of artistic expression to copyright law on a case-by-case basis and shows that, although long contested, such an approach is now mandated by EU primary law, thus “flexibilizing” significantly the legal framework in this area. It then examines the balancing act between fundamental rights and copyright, with particular attention paid to the weight the judiciary should afford freedom of artistic expression versus copyright law in cases of creative appropriation, in order to comply with the obligations resulting from European, national, and international human rights provisions. Finally, the chapter concludes with a discussion and evaluation of the growing need for legislative reform to render freedom of artistic expression fully compatible with copyright law in the context of creative reuses of protected works.
This paper analyses the influence of the right to freedom of expression and information on European copyright law in the digital context. Drawing on the practice of the two major European courts—the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU)—it begins by exploring how this fundamental right shapes both the scope of copyright protection in Europe and what is traditionally termed as “exceptions and limitations” to exclusive rights. Specifically, a long-standing practice of the ECtHR, in accordance with which copyright in turn may be viewed as an exception to freedom of expression and must hence be narrowly interpreted, is scrutinized. On a related note, a recent recourse by the CJEU to the language of “users' rights” is examined, inasmuch as it allows for a reconceptualization—in a normative framework of freedom of information—of copyright “exceptions” not as the exceptions as such, but as the equal rights of users of protected subject-matter. In this regard, the locus standi of “mere users” of online content and the somewhat diverging approaches of the Strasbourg and Luxemburg courts toward granting thereof are addressed. The paper then turns to discuss the recent recourse by the European courts to freedom of expression as a means to define the role of internet service providers in digital copyright enforcement, implicating issues ranging from the providers' liability in respect of the third-party content posted online to the often far-reaching injunctions imposed on non-liable intermediaries. Several conclusions are drawn from the above analysis, reflecting on the potential of freedom of expression and information to inform the development of European standards applicable in the field of digital copyright.
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Developing case law in relation to Norwich Pharmacal discovery litigation – coupled with the Supreme Court’s Phillips v Mulcaire decision about compelled interviews - shows a clear and distinctive trend towards protecting a broad range of intellectual property rights that may be damaged or infringed by unauthorised downloading or hacking. Statutory provisions in the Digital Economy Act 2010 reinforce the protection being given to copyright owners.However issues in relation to an individual’s personal data, clearly protected as an expressed stand-alone right the Article 8 of the EU’s Charter of Fundamental Rights, are only rarely being identified, articulated, weighed and given a separate identity in the proportionality balance conducted in the overt judicial reasoning that emerges from such litigation.When the Charter Article 8 personal data protection issues are actually identified in these intellectual property discovery situations then they are being analysed only by reference to EHCR Article 8 privacy principles which, it will be argued, ignores and detracts from a proper analysis and development of the essence of personal data enshrined in the EU’s Charter.
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Many European countries introduced a levy scheme in order to compensate rightholders for the losses suffered through home copying. The Copyright Directive of 2001, however, appears to require them to abolish levy schemes as regards private copying that can technologically be controlled by way of DRM systems. This contribution assesses the merits of this approach, mainly from an economic point of view. Is direct control over private copying preferable to a levy scheme? It is concluded that economic theory cannot provide a clear-cut answer to this question. Arguments can be made both in favor and against maintaining the levy system.
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This Article explores a wide range of issues rooted in the copyright-and-technology interface with the aim of drawing a clearer picture in this regard for policy makers and legislators. Based upon an historical examination of copyright law, this Article considers, in particular, how copyright rule-making at the international and national levels has been, and is being, shaped by technological development. More importantly, this Article expounds upon the ramifications of five lessons for the potential overhaul of copyright law amid growing complexities in striking an optimal balance of competing interests.
Reports of Judgments and Decisions 2007-I
  • Portugal
Portugal [GC], No. 73049/01, 11 January 2007, Reports of Judgments and Decisions 2007-I. In the field of patent law: ECommHR, Lenzing AG v. the United Kingdom (dec.), No. 38817/97, 9 September 1998, unreported; ECommHR, Smith Kline & French Lab.
Privatizing Human Rights? Creating Intellectual Property Rights from Human Rights Principles
  • L R Helfer
Ltd. v. the Netherlands (dec.), No. 12633/87, 4 October 1990, Decisions and Reports 66, p. 70. For a detailed analysis of the intellectual property case law of the ECtHR, see L.R. Helfer, 'The New Innovation Frontier? Intellectual Property and the European Court of Human Rights', Harvard International Law Journal 49 (2008): 1; D.S. Welkowitz, 'Privatizing Human Rights? Creating Intellectual Property Rights from Human Rights Principles', Akron Law Review 46 (2013): 675.
Concerning moral rights, even if there is no case law on them yet, legal scholars are of the opinion that these can be protected by Article 8 of the Convention on the protection of privacy (see P.B. Hugenholtz, 'Copyright and Freedom of Expression in Europe
  • See A Peukert
See A. Peukert, 'The Fundamental Right to (Intellectual) Property and the Discretion of the Legislature', in Research Handbook on Human Rights and Intellectual Property, ed. C. Geiger, supra n. 9, 132; K.D. Beiter, 'The Right to Property and the Protection of Interests in Intellectual Property -A Human Rights Perspective on the European Court of Human Right's Decision in Anheuser-Bush Inc v Portugal', IIC 39(6) (2008): 714. Concerning moral rights, even if there is no case law on them yet, legal scholars are of the opinion that these can be protected by Article 8 of the Convention on the protection of privacy (see P.B. Hugenholtz, 'Copyright and Freedom of Expression in Europe', in Expanding the Boundaries of Intellectual Property, ed. R.C. Dreyfuss, D.L. Zimmerman & H. First (Oxford/Toronto: Oxford University Press, 2001), 343, at 346; and, more prudently, J. Drexl, 'Constitutional Protection of Authors' Moral Rights in the European Union -Between Privacy, Property and the Regulation of the Economy', in Human Rights and Private Law, Privacy as Autonomy, ed. K.S. Ziegler (Oxford/Portland, OR: Hart Publishing, 2007), 159 et seq.), or even by Article 10(1) ECHR protecting freedom of expression (see P. Leuprecht, 'Droit d'auteur et droits de l'homme au plan européen', in Droits d'auteur et droits de l'homme (Paris: INPI, 1990), 66).
The Right to Property and the Protection of Interests in Intellectual Property
  • K D Further On
  • Beiter
Further on those, see, e.g., K.D. Beiter, 'The Right to Property and the Protection of Interests in Intellectual Property', supra n. 79.
The Constitutionalization of the European Legal Order: Impact of Human Rights on Intellectual Property in the EU
  • C Geiger
See, for details on this issue, C. Geiger, 'The Social Function of Intellectual Property Rights', supra n. 17; T. Mylly, 'The Constitutionalization of the European Legal Order: Impact of Human Rights on Intellectual Property in the EU', in: Research Handbook on Human Rights and Intellectual Property, ed. C. Geiger (Edward Elgar, 2015), 103; C. Sganga, Propertizing European Copyright: History, Challenges and Opportunities, Edward Elgar, 2018, 191 et seq.
(see, e.g., presentation of Mr de la Vallée-Poussin (Belgium), at 12; consider also the statement made by Mr Nally (United Kingdom) at 16 that the 'basis of Europe's fight for survival is a struggle for the subordination of
Council of Europe, Preparatory Work on Article 1 of the First Protocol to the European Convention on Human Rights, CDH (76) 36, Strasbourg, 13 August 1976 (see, e.g., presentation of Mr de la Vallée-Poussin (Belgium), at 12; consider also the statement made by Mr Nally (United Kingdom) at 16 that the 'basis of Europe's fight for survival is a struggle for the subordination of private property to the needs of the community').
L'utilisation jurisprudentielle des droits fondamentaux en Europe en matière de propriété intellectuelle: Quel apport? Quelles perspectives?', in La contribution de la jurisprudence à la construction de la propriété intellectuelle en Europe
  • Geiger
Geiger, 'L'utilisation jurisprudentielle des droits fondamentaux en Europe en matière de propriété intellectuelle: Quel apport? Quelles perspectives?', in La contribution de la jurisprudence à la construction de la propriété intellectuelle en Europe, vol. 193, ed. Ch. Geiger (Collection of the CEIPI, Paris, LexisNexis, 2013).
Geistiges Eigentum und Verfassung, supra n. 32
  • F Fechner
F. Fechner, Geistiges Eigentum und Verfassung, supra n. 32, at 135.
Guarding the Guards: The Practical Impact of Human Rights on Protection of Innovation and Creativity
  • C Geiger
For a presentation and analysis of those cases, see C. Geiger, '"Constitutionalizing" Intellectual Property Law?', supra n. 61. See also A.E.L. Brown, 'Guarding the Guards: The Practical Impact of Human Rights on Protection of Innovation and Creativity', paper presented at the 20th BILETA Conference, April 2005, Queen's University of Belfast.
which is surprising, as ethical questions play an important role in that field. However, see the two decisions of the CJEU on exclusion from patentability of inventions related to human embryonic stem cells/ human body on moral and human dignity grounds: CJEU, Case C-34/10, Brüstle
To our knowledge, there are very few decisions on patents, which is surprising, as ethical questions play an important role in that field. However, see the two decisions of the CJEU on exclusion from patentability of inventions related to human embryonic stem cells/ human body on moral and human dignity grounds: CJEU, Case C-34/10, Brüstle [2011], Judgment of the Court of 18 October 2011, ECR I-09821; ECJ, Case C-377/98, Netherlands v. Parliament and Council [2001], Judgment of the Court of 9 October 2001, ECR I-07079. For an analysis of these and other decisions on the intersection of human dignity with patent protection, see A. Plomer, 'Human Dignity and Patents', supra n. 10.
On the national level, see, for example, Hague Court of Appeal, Ziggo and XS4ALL
CJEU, Case C-70/10, Scarlet Extended [2011], supra n. 87. On the national level, see, for example, Hague Court of Appeal, Ziggo and XS4ALL v. BREIN, No. 200.105.418/01, 28 January 2014; Cartier, Montblanc and Richemont v. BSkyB, BT, TalkTalk, EE and Virgin (Open Rights Group intervening) [2014] EWHC 3354 (Ch), 17
220, who refers to the normal exploitation as 'the principal avenues of the exploitation of a work, those that provide for the author the major source of income'
  • M Senftleben
M. Senftleben, Copyright, Limitations and the Three-Step Test (The Hague: Kluwer, 2004), 193. See also S. Dusollier, 'L'encadrement des exceptions au droit d'auteur par le test des trois étapes', IRDI (2005): 220, who refers to the normal exploitation as 'the principal avenues of the exploitation of a work, those that provide for the author the major source of income'. In copyright, that could, for example, be the editing/publishing and selling of a book, meaning the exploitation of the work on the principal market.
See also C. Geiger, 'The Role of the Three-Step Test in the Adaptation of Copyright Law to the Information Society
  • K J Koelman
For such a reading, see K.J. Koelman, 'Fixing the Three-Step Test', EIPR (2006): 407. See also C. Geiger, 'The Role of the Three-Step Test in the Adaptation of Copyright Law to the Information Society', supra n. 143.
The notion and the content of the public domain is still not really clarified in legal literature
  • J G Litman
The notion and the content of the public domain is still not really clarified in legal literature. On this issue, see, e.g., J. Litman, 'The Public Domain', Emory Law Journal 39 (1990): 965; J. Boyle, 'The Second Enclosure Movement and the Construction of the Public Domain', Law and Contemporary Problems 66 (2003): 33;
Le domaine public, garant de l'intérêt public en propriété intellectuelle?', in L'intérêt général et l'accés à l'information en propriété intellectuelle
  • S Dusollier
S. Dusollier, 'Le domaine public, garant de l'intérêt public en propriété intellectuelle?', in L'intérêt général et l'accés à l'information en propriété intellectuelle, ed. M. Buydens & S. Dusollier (Brussels: Bruylant, 2008);
) and 53 of the European Patent Convention of 5 October 1973 (EPC); see also the possibility of Member States to exclude some subjects from patentability
  • See
See, for example, Articles 52(2) and 53 of the European Patent Convention of 5 October 1973 (EPC); see also the possibility of Member States to exclude some subjects from patentability (Articles 27(2) and 3 of the TRIPS Agreement).
117 et seq. On the problem of the privatization of information through database rights from a human rights perspective, see S. Corbett
  • L Benabou
In the field of copyright, this could, for example, lead to the explicit exclusion of essential public information. See also in this sense V.-L. Benabou, 'L'étendue du droit d'auteur/Der Schutzumfang des Urheberrechts', in Impulse für eine europäische Harmonisierung des Urheberrechts, ed. C. Geiger & R.M. Hilty (Berlin/Heidelberg/ New York: Springer, 2007), 117 et seq. On the problem of the privatization of information through database rights from a human rights perspective, see S. Corbett, 'A Human Rights Perspective on the Database Debate', EIPR (2006): 83 et seq.; E. Derclaye, 'Database Sui Generis Right: The Need to Take the Public's Right to Information and Freedom of Expression into Account', in New Directions in Copyright Law, vol. 5, ed. F. Macmillan, supra n. 4, at 3. In many countries, some creations like official documents and official texts are explicitly excluded from copyright protection. This possibility is left open by the Berne Convention (see Article 2.4).
The Constitutionalization of Intellectual Property Law in the EU and the Funke Medien, Pelham and Spiegel Online decisions of the CJEU: Progress
  • Funke Medien
CJEU, Case C-469/17, Funke Medien [2019], supra n. 76, para. 70; and CJEU, Case C-516/17, Spiegel Online [2019], supra n. 76, para. 54 (emphasis added), with further references to CJEU, Case C-117/13, Ulmer [2014], supra n. 162, para. 43. See C. Geiger & E. Izyumenko, The Constitutionalization of Intellectual Property Law in the EU and the Funke Medien, Pelham and Spiegel Online decisions of the CJEU: Progress, but still some way to go!, supra n. 76.
The higher the level of creativity and the more important the input of the creator is, the stronger the Human Rights claim of copyright will be. Not all works and not all situations will give copyright the same strength in its claim to Human Rights status and in its balancing exercise with other
  • P L C Torremans
See also in this spirit P.L.C. Torremans, 'Copyright as a Human Right', supra n. 50, at 19: 'The higher the level of creativity and the more important the input of the creator is, the stronger the Human Rights claim of copyright will be. Not all works and not all situations will give copyright the same strength in its claim to Human Rights status and in its balancing exercise with other Human Rights';
Authors' Rights, Human Rights?', supra n. 21, at 94 et seq.: 'It is thus far from being incongruous to say, at one and the same time, that authors' rights could be considered human rights and that this classification could remain a purely formal one in certain borderline cases
  • Fischman Afori
O. Fischman Afori, 'Human Rights and Copyright: The Introduction of Natural Law Considerations into American Copyright Law', Fordham Intellectual Property, Media and Entertainment Law 14 (2004): 500, at 524. See also in this sense M. Vivant, 'Authors' Rights, Human Rights?', supra n. 21, at 94 et seq.: 'It is thus far from being incongruous to say, at one and the same time, that authors' rights could be considered human rights and that this classification could remain a purely formal one in certain borderline cases (e.g., nuts and bolts and computer software).'
325 et seq. The author identifies a number of legal hybrids that form a third intellectual property paradigm and that should, therefore, not be protected by copyright or patent law
  • J H Reichman
For such an idea see also J.H. Reichman, 'Legal Hybrids between the Patent and Copyright Paradigms', in Information Law towards the 21st Century, ed. W.F. Korthals Altes, E.J. Dommering, P.B. Hugenholtz & J.C. Kabel (Deventer: Kluwer, 1992), 325 et seq. The author identifies a number of legal hybrids that form a third intellectual property paradigm and that should, therefore, not be protected by copyright or patent law, but by a distinct sui generis right.
Intellectual Property and Fundamental Rights', supra n. 86, at 219, n. 55, arguing that the original author should not necessarily be able to control derivative works
See also in this sense T. Mylly, 'Intellectual Property and Fundamental Rights', supra n. 86, at 219, n. 55, arguing that the original author should not necessarily be able to control derivative works. On the interaction of Freedom of Artistic creativity and copyright law, see C. Geiger, 'Freedom of Artistic Creativity and Copyright Law: A Compatible Combination?', 8/3 U.C. Irvine Law Review 413 (2018).
Can.)), permitting anyone who wants to make a copyright use of a work and cannot locate the copyright owner to petition the Canadian Copyright Board for a license. See also on this point the study conducted by the IViR (Institute for Information Law) of the University of Amsterdam
Section 514, Orphan Works Act of 2006, 109th Congress, 2nd Session, H.R. 5439, introduced to the House of Representatives on 22 May 2006. On this bill see V. Bronder, 'Saving the Right Orphans: The Special Case of Unpublished Orphan Works', Columbia Journal of Law & the Arts 31(3) (2008): 409 et seq. Another very similar bill was introduced in April 2008 (Orphan Works Act of 2008, 110th congress, 2d session H.R. 5889, introduced 24 April 2008; for a comment see J. Ginsburg, 'Recent Developments in US Copyright Law. Part I 'Orphan' Works', RIDA 217 (2008): 99). See also the specific provision on orphan works in the Canadian copyright law (Copyright Act, R.S.C., ch. C-42, section 77 (1985) (Can.)), permitting anyone who wants to make a copyright use of a work and cannot locate the copyright owner to petition the Canadian Copyright Board for a license. See also on this point the study conducted by the IViR (Institute for Information Law) of the University of Amsterdam, 'The Recasting of Copyright & Related Rights for the Knowledge Economy', 185 et seq. (Amsterdam November 2006), which recommends the implementation in the countries of the EU of a system permitting a public authority to grant a compulsory license to the user of an orphan work. The study also envisages the creation of an exception for the use of such a work, which would have to provide for a payment to the right holder if he or she should reappear (at 188). See also the article of one of the author of this study S. van Gompel, 'Unlocking the Potential of Pre-Existing Content: How to Address the Issue of Orphan Works in Europe?', IIC 38 (2007): 669; and, S. van Gompel, 'The Orphan Works Chimera and How to Defeat It: A View from Across the Atlantic', Berkeley Technology Law Journal 27 (2012): 1347.
The Federal Supreme Court of Switzerland came recently to the same conclusion in a very interesting decision of 26
  • Court German Federal
German Federal Court, 11 July 2002, 2002 GRUR 963. The Federal Supreme Court of Switzerland came recently to the same conclusion in a very interesting decision of 26 June 2007; GRUR Int. (2007): 1046. See on this decision C. Geiger, 'Rethinking Copyright Limitations in the Information Society: The Swiss Supreme Court Leads the Way', IIC (2008): 943.
We thus cannot agree with A.E.L. Brown, 'Guarding the Guards', supra n. 131, when she concludes: 'It cannot be said, so far, that a human rights based approach to interpretation of IP is having any significant effect
  • C Geiger
See on this issue C. Geiger, 'Flexibilising Copyright -Remedies to the Privatisation of Information by Copyright', IIC 39(2) (2008): 178. We thus cannot agree with A.E.L. Brown, 'Guarding the Guards', supra n. 131, when she concludes: 'It cannot be said, so far, that a human rights based approach to interpretation of IP is having any significant effect.' Even if the cases in which human rights have been used as external limits to intellectual property rights are still rare, which is rather a good sign, the interpretation of intellectual property 'in the light' of these rights has often had a considerable impact on the solutions elaborated by the judges.
Implementing Intellectual Property Provisions in Human Rights Instruments', supra n. 51. See also A. Dietz, 'Constitutional and Quasi-Constitutional Clauses for Justification of Authors' Rights (Copyright)
  • C Geiger
For such a clause see C. Geiger, 'Implementing Intellectual Property Provisions in Human Rights Instruments', supra n. 51. See also A. Dietz, 'Constitutional and Quasi-Constitutional Clauses for Justification of Authors' Rights (Copyright)', supra n. 85.
Flexibilising Copyright', supra n. 185. 191. Much in this line the last thematic report of the UN Special Rapporteur in the field of cultural rights was devoted to the issue of the impact of intellectual property regimes on the enjoyment of the right to science and culture
  • C Geiger
Further on this tendency, see C. Geiger, 'Flexibilising Copyright', supra n. 185. 191. Much in this line the last thematic report of the UN Special Rapporteur in the field of cultural rights was devoted to the issue of the impact of intellectual property regimes on the enjoyment of the right to science and culture, as enshrined in particular in Article 15
Report of the Special Rapporteur in the field of Cultural Rights, F. Shaheed, Copyright Policy and the Right to Science and Culture, Human Rights Council, Twenty-eighth session
  • Icescr
  • Assembly
ICESCR. See UN General Assembly, Report of the Special Rapporteur in the field of Cultural Rights, F. Shaheed, Copyright Policy and the Right to Science and Culture, Human Rights Council, Twenty-eighth session, A/HRC/28/57, 24 December 2014.
On the Duty of Civil Disobedience (1849, republished by Applewood Books
  • H D Thoreau
H.D. Thoreau, On the Duty of Civil Disobedience (1849, republished by Applewood Books, Bedford MA, 2000).