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Abstract

Courts have traditionally considered copyright to be immune to any external freedom of expression review, the tension between those rights having to be resolved through internal balancing mechanisms such as the idea/expression dichotomy or limitations and exceptions to the exclusive right. Two important rulings from the European Court of Human Rights (ECtHR) rendered in 2013 clearly challenge this premise. One is the judgment against France in the Ashby Donald case, the other an admissibility decision in the Swedish “Pirate Bay” application. Both rulings held that the use of a copyrighted work can be considered as an exercise of the right to freedom of expression, even if the use qualifies as an infringement and is profit-motivated. The Court, by verifying if in the given situation the interference can be justified with regard to other conflicting rights, accepts the idea that the compatibility of any copyright enforcement measure with Article 10 of the European Convention on Human Rights (ECHR) needs to be evaluated on a case-by-case basis and that no predetermined answer can be given by copyright law. Thus, it can be expected that freedom of expression might be used in the future by courts to redefine the boundaries of exclusivity. Taking this recent case law of the ECtHR as a starting point, this article examines what guidelines should be applied by the judiciary when having to solve the conflict between copyright and freedom of expression in a particular case.