FAIR DEALING DEFENCES IN VIEW OF VARIOUS JUSTIFICATIONS FOR COPYRIGHT

Fair dealing defences in view of various justifications for copyright



Fair dealing defences in view of various justifications for copyright

Introduction

Concern over the steady proliferation of intellectual property rights, or, conversely, the declining public domain is no longer limited to the United States. In recent years, an increasing number of prominent European scholars and judges have expressed their anxiety over the seemingly unstoppable growth of copyrights, neighboring rights, sui generis rights, trademarks, and other rights of intellectual or industrial property. Can the rising tide of copyright and related rights be stopped? Recent court decisions from Europe seem to suggest that freedom of expression and information, as guaranteed inter alia in the European Convention on Human Rights (“ECHR”) , may under specific circumstances limit overbroad protection. Article 10 ECHR , long overlooked by scholars and courts alike, may serve, perhaps, not as a dike, but as a lifebuoy for bona fide users drowning in a sea of intellectual property.

Whereas copyright grants owners a limited monopoly with respect to the communication of their works, freedom of expression and information, guaranteed under article 10 ECHR, warrants the “freedom to hold opinions and to receive and impart information and ideas ...”. Assuming that every copyrighted work consists, at least in part, of “information and ideas,” a potential conflict between copyright and freedom of expression is apparent. Nevertheless, as recently as 1999, the European Court of Human Rights (the “European Court”) has yet to decide its first case dealing with this issue.

There are a number of explanations for the late development of European interest in the potential copyright/free speech conflict. One important factor is the natural law mystique that traditionally has surrounded copyright (droit d'auteur) on the European continent. Unlike the law of the United States, where utilitarian considerations of information policy are directly reflected in the Constitution (“to promote science and the useful arts...” ), continental-European 'author's rights' are based primarily on notions of natural justice: “author's rights are not created by law but always existed in the legal consciousness of man”. In the pure droit d'auteur philosophy, copyright is an essentially unrestricted natural right reflecting the 'sacred' bond between the author and his personal creation.

Another factor explaining the paucity of copyright v. free speech case law and literature is a certain reluctance on the part of European national courts and scholars to apply fundamental rights and freedoms in so-called 'horizontal' relationships, i.e. in conflicts between citizens. Also, unlike the situation in the United States, constitutional courts with the power to overturn national legislation that violates provisions of the constitution are absent in many European countries. An important exception is the federal constitutional court in Germany, the Bundesverfassungsgericht, that, since 1948, has displayed a measure of constitutional activism comparable to that of the U.S. Supreme Court. Furthermore, because constitutional protection for free speech in Europe nearly always expressly leaves room for restrictions imposed by national legislatures, courts in Europe will be faced with issues of ...