Since the 2007 decision Anheuser-Busch Inc. v. Portugal, based on Article 1 of Protocol No. 1 to the European Convention on Human Rights (ECHR) and the adoption of Article 17 of the EU Charter of Fundamental Rights, that no doubt exists as to the fact that intellectual property rights (IPR) are fundamental rights.
This statute gives IPR a special force, that can only be derogated when other fundamental rights are at stake. The judge must then assess on a case-by-case basis whether infringement of the IPR is such that it deserves a restriction of other fundamental rights, and vice versa.
This article summarises four significant 2022 case laws in which European Courts addressed the balancing or reconciliation of copyrights with other fundamental rights guaranteed by European law.
The first decision is Finland’s Supreme Court judgment, KKO:2022:47 (5 July 2022) relating to copyrights and the right to respect for private life.
In this case, the claimant demanded the disclosure of subscribers’ identification data to copyright holders due to copyright infringement in the context of a peer-to-peer network, under section 60a(1) of the Copyright Act of Finland. The defendant, a telecom company, refused to comply with the claimant’s request, arguing that it was contrary to the Community law.
As per section 60a(1) of the Copyright Act, disclosure of subscriber information is permitted if material is being made available to the public to an extent that is significant in terms of copyright protection.
The Supreme Court considered that this criterion was met and ordered the defendant to provide the claimant with the user's and subscriber's contact information for all telecom connections required in the application.
The Supreme Court, referring to the Court of Justice of the European Union (CJEU) decision in case C-597/19 Mircom that confirmed previous jurisprudence, concluded that the disclosure of the contact information in this case did not represent a noteworthy incursion into the privacy of the subscribers. Thus, the Court considered it to be in accordance with the principle of proportionality and the objective of achieving a fair balance between the copyright holders’ rights and the privacy protection of subscribers.
The second decision comes from the Italian Supreme Court (case Gianni Rivera v RCS, decision No 19515/2022, 18 June 2022) regarding the interaction between copyrights, the right to respect for private and family life, and the right of information.
Gianni Rivera is a well-known former professional footballer who in 2012, filed a lawsuit against RCS, the publisher of the newspaper Gazzetta dello Sport, for unauthorised use of his image in several publications on the history of football.
Gianni Rivera argued that the use of his image without his consent constituted a violation of his image rights protected by the Italian Civil Code and the Italian Copyright Act. In defense, the RCS invoked Article 97 of the referred Copyright Act which provides circumstances under which the image of a well-known person can be legally reproduced even without consent.
The Supreme Court had to decide whether Article 97 applied in this case, with the goal of striking a balance between rights and freedom of information, particularly the public interest in obtaining complete and accurate information.
Ruling in line with the jurisprudence of the European Court of Human Rights (ECtHR) related to the connection between Article 8 and Article 10 of the ECHR, the Court decided in favour of the defendant.
Indeed, because the publications were neither offensive nor inappropriate and did not expose the private life of the claimant, the Court considered that the public interest in being informed about him was more important.
The third case, Judicial Court of Paris, 3e ch., 2e sect., Eric Zemmour and others v Société des Auteurs et Compositeurs Dramatiques (SACD), Gaumont and others, RG No 22/00034 [4 March 2022], concerns copyright, the right of information and freedom of speech.
At issue was the applicability of the quotation exception provided by Article L122-5 of the French intellectual property code, which is a legal exception to using the works without the copyright holder’s consent, to the video Je suis candidat à l’élection présidentielle, broadcast by the far-right presidential candidate, Éric Zemmour.
Short excerpts from the films Le Quai des brumes, Dans la maison, Louis Pasteur, Portrait d'un visionnaire, Jeanne d'Arc, and Un singe en hiver were included in the video.
Invoking infringements of their economic rights as well as moral rights, the copyright holders of these works took legal action against Éric Zemmour, the Association Reconquête, publisher of the official site of the politician, and its president, François Miramont, whose defence was based on freedom of expression, as guaranteed by Article 10 of the ECHR.
On 4 March 2022, the Court ruled that the unauthorised use of copyrighted works does not benefit from the quotation exception for three main reasons: (a) the defendants did not appropriately cite the authors; (b) the excerpts did not support the candidate's argument; and (c) the use of the works at issue in a political framework violates the moral rights of paternity and distorts the integrity of the original works.
The Court of Paris concluded that copyright protection constituted a proportionate and necessary interference with the freedom of expression, in the line of CJEU judgment ‘Spiegel Online’ (29/07/2019, C-516/17, Spiegel Online, EU:C:2019:625).
Last but not least, on 26 April 26, 2022, the CJEU issued decision C-401/19 - Poland v. Parliament and Council, which addressed the validity of Article 17 of the Copyright in the Digital Single Market Directive (CDSMD) in the light of fundamental rights.
The case was initiated by the Polish Government, which argued that Article 17(4) (b) and (c) in fine violate the right to freedom of expression and information as stated in Article 11 of the EU Charter of Fundamental Rights.
The European Commission, France, Spain, and Portugal, which intervened on the side of the defendants, the European Parliament, and the Council of the European Union, claimed, on the contrary, that the article in question does not violate the right to freedom of expression. For the European Commission, there are sufficient internal safeguards in the same Article, namely Article 17(7) concerning lawful uploads, to prevent any violation. For France, Spain, and Portugal, any possible limitations to the freedom of expression, if they exist, would be temporary and justified by the purpose of protecting the rights of authors and other rights holders.
In its ruling, the CJEU agreed with the European Commission, affirming that Article 17 includes sufficient safeguards protecting the users’ right to freedom of expression and information.
However, the European Court of Human Rights’ decision in Ahmet Yildirim v. Turkey (18 December 2012) acknowledged that it poses a significant risk to compliance with the fundamental right in question, imposing strong safeguards by national legislation of the Member States when transposing the Directive. And, in this regard, it appears that, to date, only the German implementation meets the Court's protection of freedom of expression requirements.
The European Courts are frequently led to rule on issues in which intellectual property rights collide with other fundamental rights. In their decisions, they are asked to find a point of balance in which a harmonious articulation is established, which turns out, sometimes, to be very challenging but inevitable.