[A2k] ECHR Decision on Copyright vs. Freedom of Expression

Pranesh Prakash pranesh at cis-india.org
Tue Jan 22 20:34:45 PST 2013

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Dear all,
Prof. Dirk Voorhoof of Ghent University and Inger Høedt-Rasmussen of
Copenhagen Business School have posted a good bit of analysis of Ashby
Donald v. France.

While the court acknowledges the tension between free speech and
copyright, they come to the conclusion that in the instant case
copyright wins out.

Here's the analysis:

Here's the summary:

ECtHR (5th section), 10 January 2013, case of Ashby Donald and others
v. France, Appl. nr. 36769/08
By Dirk Voorhoof, Ghent University and Inger Høedt-Rasmussen,
Copenhagen Business School

For the first time in a judgment on the merits, the European Court of
Human Rights has clarified that a conviction based on copyright law
for illegally reproducing or publicly communicating copyright
protected material can be regarded as an interference with the right
of freedom of expression and information under Article 10 of the
European Convention. Such interference must be in accordance with the
three conditions enshrined in the second paragraph of Article 10 of
the Convention. This means that a conviction or any other judicial
decision based on copyright law, restricting a person’s or an
organisation’s freedom of expression, must be pertinently motivated as
being necessary in a democratic society, apart from being prescribed
by law and pursuing a legitimate aim.

It is, in other words, no longer sufficient to justify a sanction or
any other judicial order restricting one’s artistic or journalistic
freedom of expression on the basis that a copyright law provision has
been infringed. Neither is it sufficient to consider that the
unauthorised use, reproduction or public communication of a work
cannot rely on one of the narrowly interpreted exceptions in the
copyright law itself, including the application of the so-called
three-step test (art. 5.5 EU Directive 2001/29 of 22 May 2001). The
European Court’s judgment of 10 January 2013 in the case of Ashby
Donald and others v. France unambiguously declares Article 10 of the
Convention applicable in copyright cases interfering with the right of
freedom of expression and information of others, adding an external
human rights perspective to the justification of copyright
enforcement. Due to the important wide margin of appreciation
available to the national authorities in this particular case, the
impact of Article 10 however is very modest and minimal.

- -- 
Pranesh Prakash
Policy Director
Centre for Internet and Society
T: +91 80 40926283 | W: http://cis-india.org
PGP ID: 0x1D5C5F07 | Twitter: @pranesh_prakash
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