COPYRIGHT IN THE FRAMEWORK OF THE ECHR

Copyright as a type of intellectual property rights plays better role in our lives than we can imagine. Although the issue of copyright has started to be talked about intensively during the last several decades, the issue of its violation has existed long time ago. The very first documents limiting peoples’ rights to free copying and disseminating materials were the Licensing Act of 1662 and the Statute of Anne of 1710. However, it was just the XX century when a number of international agreements and treaties were concluded with the aim of fair use and reproduction of original works. Among them the most important ones are the Universal Copyright Convention, the Berne Convention, WCT, and the TRIPS.

Copyright has no specific constitutional foundation in continental Europe. In most EU Member States, the constitutional basis of copyright law can be found either in provisions which protect personality rights or in those which protect property.

In the context of EU law, neither the EC Treaty nor the ECHR provide copyright protection on constitutional basis. Recognition of intellectual property as a fundamental right was embodied in Article 17 (2) of the EU Charter of Fundamental Rights, which provides that “intellectual property shall be protected”. The recognition of copyright as a fundamental right could be concluded before the proclamation of the EU Charter from the phrasing of Article 1 of Protocol 1 of the ECHR: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions”. What is important to emphasize here is that Article 1 of Protocol 1 of the ECHR (as well as Article 17 of the EU Charter) makes it clear that the fundamental right to the peaceful enjoyment of possessions, including intellectual property rights, can be made subject to exceptions for the pursuit of the public interest.

The second part of Article 1 (1) states “No one shall be deprived of his possessions except the public interest and subject to the conditions provided for by the law and the general principles of international law”. In addition, Article 1 (2) provides that: “The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest to secure the payment of taxes or other contributions or penalties”.

Similar to what Article 1 provides with regard to the right of property, the provision of Article 10 (2) of the ECHR clarifies that the fundamental right of freedom of expression and information is not absolute. Article 10 (2) of the ECHR provides that the exercise of the freedoms to receive and impart information “…may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society…for the protection of the reputation or rights of others…”

This clause clarifies that the right to freedom of communication can be legitimately limited for the purpose of preserving a wide range of subjective rights and interests which fall within the meaning of “rights of others”. In the case law of the ECHR, copyrights were found to constitute “rights of others” and thus justify the restrictions of other fundamental rights such as the right to privacy protected under Article 8 of the ECHR, which uses the same expression of Article 10 to limit the protection of privacy.

As it can be seen, the ECHR by virtue of the provisions of Article 10 (2) and Article 1 of Protocol 1 sets a solid ground for balanced co-existence of copyright (i.e. property) protection and freedom of expression on the one hand, and on the other mandates a balanced protection of intellectual property and that of freedom of expression and information.

Copyright and Related Rights

Copyright and privacy rights sometimes coincide. It may seem, for example, that there is a conflict between the right of the photographer on his work and the right to privacy of the person photographed. This conflict does not exist because it is acknowledged in Article 8 (2) ECHR. It can also be said that under Article 1 of the First Additional Protocol, state may “expropriate” copyright holders in the interest of having their right to privacy respected. Sometimes, when copyright and private interests go hand in hand, they can be said to “conflict” with freedom of speech. It is neither against the right to privacy nor the right to property, as freedom of speech Article 10, 1 (ECHR) and public interest (Article 1, 2 First Additional protocol) may prevail.

There is no conflict between copyright and the right to education, as provided in Article 2 of the First Additional Protocol to the ECHR. Firstly, the right to education does not include an obligation on states to provide for any type of education at their own expense. It is a right to access educational institutions and to obtain official recognition for the studies pursued. However, the right to education seems “to require States to maintain certain standards in education”. Article 13 ICESCR has been interpreted to require specific obligations from states. It includes availability, which means that teaching materials must be available. It also includes economic availability, i.e. education must be affordable to all. However, there is no conflict between copyright and the right to education again because of copyright’s limits.

Similar area of coincidence or even cooperation is found between copyright and the right to freedom of thought, conscience and religion. As copyright is closely linked with freedom of expression and the latter allows a broad and varied expression of beliefs though writings and other copyright works, the three rights form an inseparable trio.

At first sight it may seem that there is no registered right guaranteeing legal protection to creators and publishers of works. And yet, Article 1 of Protocol 1 to the ECHR and Article 10 are the core bullets within the heart of the European Court of Human Rights. Apart from the right to property, right to free expression, the copyright as further studies showed is also closely related with the right to education, privacy and free expression.

Rights become valuable once there are respected and observed. And the right to copyright is one of such rights which is directly associated with person’s dignity since what can be more beautiful than the confidence in the legal protection of your creations and yourself as a creator?!

Bibliography

1. Guiseppe Mzziotti // EU digital copyright law and the end-user: Springer 2007, 233- 280.

2. Paul L.C. Torremans // Intellectual property of human rights: Law and Business 2008

3. W. Cornish, T. Aplin // Intellectual property: patents, trademarks and allied rights: Sweet and Maxwell 1988

4. Laurence R. Helfer and Graeme W. Austin // Human rights and intellectual property mapping the global interface: Cambridge University Press 2011, 20-68.

5. Daniel J. Gervais // Intellectual Property and Human Rights: Learning to Live Together: January 2008, 1-23

6. http://www.hri.org/docs/ECHR50.html

7. http://www.wipo.int/portal/index.html.en