Copyright and fundamental rights. Odd pairing or a topic for the future?

(IPRinfo 2/2011)

Heikki Kemppinen
Associate, Attorneys at law Borenius & Kemppinen Ltd

Shared aspects illuminate difficult issues.

Until recently, copyright and fundamental rights have been held by many as wholly separate areas of law with little if any common ground. Some have argued that it is totally irrelevant to approach copyright from the direction of fundamental rights as this would amount to conflating the classical division between private and public law.

On the other hand, some have held that the question is of little professional interest as issues related to fundamental rights have already been taken into account in copyright legislation and the related doctrines, most importantly in the form of exceptions to copyright, common in most legal systems.

Copyright-related matters have been seen to emanate from the domain of private parties, like the rights holder and the user, thus being at some distance from the classical relationship of state vs. individual which has been cherished in constitutional law and its visions of fundamental rights.

Recent developments in both constitutional law and intellectual property law have, however, brought forth new and interesting ways of approaching the aspects shared by these two fields.

Two approaches in current discourse
In some ways, the development of the past decades has been twofold. On the one hand, the application of fundamental rights in the sphere of private law, and the so-called horizontal effect they have between private parties, have been brought to the fore in legislation, judicial practice, and legal writing.

On the other, several writers approaching the current copyright system as being too extensive to the benefit of the right holders have used fundamental rights as a tool of criticism towards copyright.

The trends of uniting fundamental rights and copyright have also been coloured by emotions. Recently, certain commentators have expressed their astonishment at the newly ratified EU Charter of Fundamental Rights and its Article 17 (2), where it is laconically stated that ”Intellectual property shall be protected”.

Here a second approach presents itself: instead of using fundamental rights as an instrument of criticism toward the current copyright regime, why not argue in support for copyright itself as a fundamental right and thus as being worthy of an even greater importance and stronger protection than has thus far been granted? Between these wildly contrasting approaches, the titular relationship becomes quite interesting indeed.

Separate or together?
There are several different opinions on the relationship between fundamental rights and copyright. Some writers more critical of copyright in its current form have expressed their fear that a link between fundamental rights and copyright would lead to ever stronger forms of copyright protection, as copyright could be attached – without any reservations – to the fundamental rights protection of property or held as a fundamental right in itself.

This, however, seems to be an illusory threat. After all, if we take the relationship between fundamental rights and copyright for granted, we also have to allow for the balancing of copyright with other interests protected by fundamental rights, such as privacy and freedom of speech.

A more nuanced, or ”neutral” line of argumentation is that fundamental rights and copyright do interact but that this interaction largely results in exceptions to copyright. Thus, the questions relating to fundamental rights become merely questions of applying the relevant copyright legislation which has internalised all or nearly all potential fundamental rights issues. This perspective also espouses the view that fundamental rights and copyright will only rarely be in conflict, as both areas can be seen as working towards similar goals.

Further, it is held that the link between copyright and other types of property is close enough to warrant affording copyright all the protection granted to property pursuant to several fundamental and human rights conventions.

Critical writers have looked to fundamental rights as a way to introduce a much-needed sense of proportion they feel has been lacking from copyright discourse. Taking into account, e.g., freedom of speech and the right of everyone to gain access to information especially when it is socially or culturally relevant, opens the way for envisaging a more balanced system of copyright protection that also takes into account the interests of the public at large while not forsaking adequate remuneration of right holders.

The more critical viewpoints also espouse the view that copyright should not be equated with physical property when considering the application of the fundamental right to enjoy one’s property and possessions. After all, it could be argued that copyright in itself contains certain limitations to its own exclusivity, unlike other types of property.It is felt that what is needed is a case-by-case discussion of when copyright should be afforded the protection afforded to other, physical and concrete possessions.

Freedom of speech as a case in point
The different perspectives already mentioned can be further illuminated by examining the relationship between copyright and freedom of speech.

Proponents of the ”neutral” view hold that exceptions to copyright such as the right of citation (Section 22 of the Finnish Copyright Act), and the so-called idea/expression doctrine, defuse all potential issues related to freedom of speech. After all, if only expressions are protected, everyone is free to use their freedom of speech to circulate ideas and develop new expressions.

The critical view holds that new developments, such as digital rights management and click-wrap contracts, the signing of which is often required to gain access to any protected content, can pose serious risks to freedom of speech. Another problem is seen to emanate from the sui generis protection of databases, seen as a step toward protecting information as such.

The critics also see that arguments based on the idea/expression dichotomy are in no way efficient, as it remains silent on the difficulties inherent in trying to separate the ”idea” from the ”expression”.Granted, cases where freedom of speech and copyright are on opposite ends of the table may take some time to materialize. Courts may also be wary of applying fundamental rights in cases involving only private parties, although this could be recommended for the sake of equality especially when one of the parties is in a significantly more powerful position than the other.

Be that as it may, approaching copyright from the perspective of potential difficulties with regard to freedom of speech may at least make legislators and courts more aware of the careful balancing copyright-related issues often require.

More discussions waiting ahead
The relationship between copyright and fundamental rights can take various contrasting forms, as can be seen by a quick glance at the relevant literature. While some hold fundamental rights as a tool of copyright criticism and others as a mere reflection of the status quo of copyright legislation, the only thing that seems certain is that the matter will gain visibility in the years to come.

This may especially be so on the level of the EU courts, which have already indicated their willingness to address similar issues, as shown by the recent Promusicae-case (C-275/06) contrasting the Information Society Directive (2001/29/EC) with the Community’s fundamental rights protection, dealing more specifically with the balancing of protection of privacy and alleged copyright infringement.

Further reading
William W. Fisher III: Promises to Keep. Technology, Law and the Future of Entertainment. Stanford: Stanford University Press. 2004.

Tuomas Mylly: Intellectual Property and European Economic Constitutional Law. The Trouble With Private Informational Power. Helsinki: IPR University Center. 2009.

Neil Weinstock Netanel: Copyright’s Paradox. Oxford: Oxford University Press. 2008.

Paul L.C. Torremans (ed.): Intellectual Property and Human Rights. The Netherlands: Kluwer Law International. 2008.

Charter of fundamental rights of the European Union

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Official Journal of the European Communities 22.6.2001, L 167/10.

The Court of Justice of the European Union, 29 January 2008, Case C-275/06
Productores de Música de España (Promusicae) v Telefónica de España SAL