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Law

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.

Constitutional Basis of Copyright in Europe

Even within the European Union, copyright law in Europe is still very much regulated on a country-by-country basis. Each independent state has its own law that protects copyrights, or “authors' rights” as the European mainland prefers it, much in the same way as the Copyright Act of the United States. The Member States of the European Union have, until today, preserved their autonomy in this field, but must comply with a handful of harmonization directives that the European Council and Parliament have adopted since 1991.

Freedom of Expression and Information in Europe

A right to enjoy freedom of expression and information has been embodied in various international treaties and instruments. From a European perspective, Article 10 of the ECHR is, by far, the most relevant. The freedom of expression and information protected under Article 10 ECHR includes the right to foster opinions, as well as to impart, distribute and receive information without government ...