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Copyright and Fundamental Rights in the
Digital Age
Copyright and
Fundamental Rights in
the Digital Age
A Comparative Analysis in Search of
a Common Constitutional Ground
Edited by
Oreste Pollicino
Full Professor of Constitutional Law and Media Law, Bocconi
University, Italy and Member of the Management Board of the
Fundamental Rights Agency
Giovanni Maria Riccio
Professor of Comparative Copyright Law, University of
Salerno, Italy
Marco Bassini
Postdoctoral Researcher in Constitutional Law and Adjunct
Lecturer of IT Law, Bocconi University, Italy
Cheltenham, UK • Northampton, MA, USA

© The Editors and Contributors Severally 2020
All rights reserved. No part of this publication may be reproduced, stored in a

retrieval system or transmitted in any form or by any means, electronic, mechanical or
photocopying, recording, or otherwise without the prior permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.

William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book

is available from the British Library
Library of Congress Control Number: 2020944305
This book is available electronically in the

Law subject collection
http://dx.doi.org/10.4337/9781788113885
ISBN 978 1 78811 387 8 (cased)

ISBN 978 1 78811 388 5 (eBook)
Contents
List of contributors vii
1 Introduction 1
Oreste Pollicino, Giovanni Maria Riccio and Marco Bassini
2 ‘Speaking truth to power’: copyright and the control of speech 6

Fiona Macmillan
3 Copyright strengthened by the Court of Justice

interpretation of Article 17(2) of the EU Charter of
Fundamental Rights 28
Alain Strowel
4 Regulating with rights proportionality? Copyright,

fundamental rights and internet in the case law of the Court
of Justice of the European Union 54
Tuomas Mylly
5 Copyright and fundamental rights in European Court of

Human Rights case law 99
Oleg Soldatov
6 Cultural rights, cultural diversity and the EU’s copyright

regime: the battlefield of exceptions and limitations to
protected content 124
Evangelia Psychogiopoulou
7 The influence of the Court of Justice of the European

Union on national courts in copyright cases 155
Giovanni Maria Riccio
8 US and EU: diverging or intertwined paths? 188

Maria Lillà Montagnani and Alina Trapova
v
vi Copyright and fundamental rights in the digital age
9 From private enforcement to public enforcement.

Copyright enforcement in the digital age: a comparative overview 216
Giorgio Giannone Codiglione and Marco Bassini
Index 254
Contributors
Marco Bassini is a Postdoctoral Researcher in Constitutional Law at Bocconi

University, where he is an adjunct lecturer in ‘Public Law’, ‘Fundamentals
of Information Technology Law’ and ‘Human Rights in the Cyberspace’ and
coordinator of the LLM programme in Law of Internet Technology. In 2016 he
received his PhD in Constitutional Law and European Law from the University
of Verona. He has been a Postdoctoral Emile Noël Fellow at the Jean Monnet
Center for International and Regional Economic Law & Justice – New York
University (2016). His research interests include, among others: protection of
human rights in the digital age, populism and constitutional law, and European
constitutional law. He is also vice-editor in chief of the Rivista di diritto dei
media (‘Journal of media law’).
Giorgio Giannone Codiglione is Researcher in Comparative Law and teaches
‘Comparative Consumer Law’ and ‘Italian and Comparative Tort Law’ at the
Law Faculty of the University of Salerno. Having a PhD in Comparative Law,
he has obtained the National Scientific Qualification to act as an Associate
Professor of the same subject. He is an expert member of the Human Rights
Committee at the Council of Bars and Law Societies of Europe (CCBE).
He has published books, essays, comments and translations in the fields of
information and communication technology law, privacy and data protection,
copyright, competition, and the law of remedies.
Fiona Macmillan is Professor of Law at Birkbeck, University of London,
Visiting Professor of Law at the University of Roma Tre and at the University
of Technology, Sydney, and a Fellow of the Royal Society of the Arts. She
is a member of the Executive Committee of the International Society for the
History and Theory of Intellectual Property (ISHTIP), having previously been
one of its co-directors, and one of the managing editors of the journal Law and
Critique. Her work focuses on the areas of intellectual property, cultural prop-
erty/heritage and international economic law. Her new monograph, Intellectual
and Cultural Property: Between Market and Community, will be published by
Routledge in 2020.
Maria Lillà Montagnani is an Associate Professor of Commercial Law at
Bocconi University in Milan, where she teaches and researches in the field of
intellectual property and information technology law. She is the Director of the
vii
viii Copyright and fundamental rights in the digital age
LLM in European Business and Social Law at Bocconi University. She is also
a Fellow at the Transatlantic Technology Law Forum (Stanford University
and University of Vienna) with a project on liability and emerging digital
technologies.
Tuomas Mylly is Chair of Commercial Law at the Faculty of Law, University
of Turku. He is also an Adjunct Professor of European Law at the University
of Turku. In addition to his academic career and studies in Finland and abroad,
he has functioned as lawyer and legal counsel at a law firm and a major mobile
communications corporation in Finland. Professor Mylly’s research focuses
on global and European intellectual property law, and competition law of the
digital society, as well as European constitutional law related to the regulation
of information.
Oreste Pollicino is Full Professor of Constitutional Law at Bocconi University,
where he also serves as Director of the LLM programme in Law of Internet
Technology. He is co-founder and editor in chief of the blog MediaLaws.
eu. He also is the editor in chief of the law journals Rivista di diritto dei
media and Rivista di diritti comparati. Professor Pollicino is co-chair of the
IACL (International Association of Constitutional Law) research groups
‘Algorithmic State, Society and Market – Constitutional Dimensions’ and
‘Internet and Constitution’. Professor Pollicino is also a member of the
Management Board of the European Union Agency for Fundamental Rights
and of the ‘Data Governance’ working group of the Global Partnership on
Artificial Intelligence (GPAI). His research interests include, among others:
internet law, European constitutional law and judicial dialogue in the protec-
tion of human rights in the digital age.
Evangelia Psychogiopoulou is Senior Research Fellow at the Hellenic
Foundation for European and Foreign Policy (ELIAMEP), a member of the
adjunct academic staff of the Hellenic Open University and a legal coun-
sellor for the Greek Ministry of Culture and Sports. She has worked for the
Directorate General Education and Culture of the European Commission and
she is a former Marie Curie Fellow at the University of Maastricht. She holds
a DEA in EU Law from the University of Paris I, Pantheon-Sorbonne and
a PhD in Law from the European University Institute. Her research focuses
on EU law, EU cultural governance, media governance and fundamental
rights. She is the author of The Integration of Cultural Considerations in EU
Law and Policies (Martinus Nijhoff Publishers, 2008) and editor of Cultural
Governance and the European Union: Protecting and Promoting Cultural
Diversity in Europe (Palgrave Macmillan, 2015).
Giovanni Maria Riccio is Professor of Comparative and IT Law at the
University of Salerno. A former consultant to the EU Commission for the
Contributors ix
revision of the E-Commerce Directive, he has been an Academic Visitor

at the Oxford Intellectual Property Research Centre and a Research Fellow
at Birkbeck, University of London. He is a founder and co-director of
MediaLaws, the first international blog on IT and media law.
Oleg Soldatov is a PhD researcher at Bocconi University in Milan. He previ-
ously worked as a lawyer at the European Court of Human Rights (2011–2014)
and as a legal advisor at the Council of Europe (2015–2016).
Alain Strowel is Professor of Law at the UCLouvain and the University
Saint-Louis, Brussels where he teaches intellectual property, media law and
EU IT law. He also gives copyright and design courses in two advanced
Masters in IP and IT law at the KULeuven and Munich Intellectual Property
Law Center. He has been an avocat at the Brussels bar since 1988. His expe-
rience focuses on intellectual property and internet law. He has been a trustee
of the European Law Academy in Trier (2012–2019) and was elected to the
Academia Europaea in 2012. Since 2019, he has chaired the IP working
group of the ALLEA (All European Academies) of which he has been
a member since 2011. Alain graduated in law, economics and philosophy at
the UCLouvain and the University of Amsterdam. Today his research focuses
on data governance and the law of artificial intelligence and online platforms.
Alina Trapova is a PhD candidate in Legal Studies at Bocconi University in
Milan, where she works on a research project in the field of machine learning
and copyright authorship. She is also the coordinator of the LLM programme
in European Business and Social Law at Bocconi University. She was a vis-
iting fellow at the Max Planck Institute for Innovation and Competition in
Munich (2019–2020). She also teaches intellectual property law to fashion and
design students at Milano Fashion Institute and Accademia del Lusso in Milan.
1. Introduction
Oreste Pollicino, Giovanni Maria Riccio and
Marco Bassini
What are the sense in and the added value of a book exploring the relation-
ship between copyright and other fundamental rights in the aftermath of the
Digital Single Market strategy? The question, if so framed, is not an easy
one to answer, as the recent approval of the Digital Single Market Directive
(Directive (EU) 2019/790) apparently marked a point of no return while
reshaping the most challenging parts of the EU legal framework on copyright.
As a result, the EU institutions seem to have achieved, in light also of other
reforms (such as the refit of the AMVS Directive), a new legal environment
in which a balance between copyright and other rights and freedoms has been
drawn. The implementation of the DSM Directive, nevertheless, will take
time and effort. Additionally, it is difficult to predict how Member States will
react to this step, as some of them voiced harsh criticism concerning, most
notably, the provisions on online uses of press publications and the measures
applicable to content-sharing service providers. Also, has the ‘battle’ between
copyright and freedom of expression in the digital age truly come to an end?
Many factors, especially recent stances in the case law of the Court of Justice,
suggest that the problem is indeed far from being settled. The challenges that
Member States will have to face in the implementation process of the DSM
Directive largely derive from the inherently strained relationship between cop-
yright and other competing rights such as freedom of speech, data protection
and freedom to conduct business. In this respect, this volume departs from the
assumption that the rise of the internet and the spread of digital technologies
led to a reshaping of the understanding of this relationship, particularly as far
as freedom of expression is concerned. While the internet offers new channels
and opportunities for the circulation of copyrighted works, it nevertheless
brings about new threats for right holders, to the extent peer-to-peer systems
and user-generated-content platforms, among others, can be used also by per-
petrators of copyright infringements. For example, remedies available on the
internet may also impact third parties, e.g., users other than the perpetrators of
the infringements, and interfere with their freedom of expression. Likewise,
when illegal pieces of content or information are posted online, internet inter-
1
2 Copyright and fundamental rights in the digital age
mediaries, most notably hosting providers, come into play in the enforcement
stage, in accordance with the notice-and-take-down procedure provided for in
the E-Commerce Directive, which reflects the Digital Millennium Copyright
Act. Internet service providers’ liability is perhaps the most sensitive issue
within the new paradigm describing the relationship between copyright and
other fundamental rights. Liability of internet intermediaries also allows the
connection between the two main understandings of freedom of expression
that are confronted when it comes to the internet: the American quasi-absolute
view enshrined in the First Amendment and the more balanced construction,
which is a distinguishing feature of European constitutionalism. It is not by
coincidence that the provisions on internet service providers’ liability are
regarded as free speech rules1 and that the latest regulatory developments
have shed some light on the key role of these actors vis-à-vis content as well
as data – even if no reform has taken place in the liability regime provided
for in the E-Commerce Directive so far. Some recent stances of the European
Court of Human Rights are witness to this understanding, which is reflected in
a set of judgments where the Court had to review whether measures imposed
by national authorities affecting internet service providers amounted to
impermissible limitations of freedom of expression pursuant to Article 10 of
the Convention. Also, in view of the difficulties and uncertainties surround-
ing the liability of service providers, some jurisdictions have implemented
public enforcement procedures for copyright online, which have paralleled
the already existing ‘traditional’ private enforcement mechanisms. The intro-
duction of similar procedures, in turn, mirrors the limited effectiveness of
the well-established enforcement avenues in the age of the internet. If the
latter have not become per se obsolete, they are in any case far from ensuring
an effective protection to right holders in case of infringements occurring
on the internet. The choice to resort to public enforcement also has brought
into the scene administrative authorities such as the Italian Communications
Authority (AGCOM) or the French ad hoc-established Haute Autorité pour la
diffusion des oeuvres et la protection des droits sur l’internet (HADOPI). The
devolution of powers (whether regulatory or sanctioning) to these authorities
has nevertheless resulted in further discussions regarding the legitimacy of
non-judicial bodies interference, through the respective orders, with the pub-
lication of content or information by users. So, again, the focus of the debate
centres on the remedies available on the internet and the relevant constitutional
permissibility.
1
See ‘Section 230 as First Amendment rule’ (2018) 131 Harvard Law Review
2027.
Introduction 3
Can the above be described as ‘a dog that bites its own tail’? Perhaps it is,
but the questions highlighted so far still provide food for thought, in spite of
the recent developments marked by the approval of the DSM Directive. The
ambition of this book is to try to resolve some of the aforesaid unresolved
issues in the relationship between copyright and other rights and freedoms
through a comparative and European perspective. As usual, the book is not
supposed to provide an answer to the above questions, but rather to constitute
an attempt to revisit a critical understanding of some of the underlying legal
issues.
In order to fulfil this goal, the book offers an overview including a variety of
focus points from the public and private law perspectives.
Fiona Macmillan’s chapter opens the book by providing a thorough inves-
tigation of a frequently underestimated point in the debate, i.e., the reach of
the constitutional protection granted to freedom of speech. The author, in
particular, notes that the traditional understanding of free speech as a principle
enforceable only vis-à-vis the state would significantly undermine the impor-
tance of this argument in the copyright context. According to Macmillan, ‘if
freedom of speech theories do not take private power into account they have
failed to keep up with social and economic developments’; accordingly, she
argues that ‘freedom of speech principles should restrain not just state attempts
to restrict speech using copyright but also such attempts by those holding
significant non-state power’. The chapter captures an issue that has recently
regained significant attention among scholars, most notably in respect of the
role of digital platforms. The understanding of the degree of enforceability of
some constitutional protections constitutes in fact a key factor for evaluating
the relationship between copyright and other competing rights in light of the
specific nature of the former.
The chapter by Alain Strowel explores the added value inherent in Article
17 of the Charter of Fundamental Rights of the European Union, looking at
the interpretation of the Court of Justice of this provision in the context of its
relevant case law. The focus on Article 17 unveils the importance attached to
intellectual property in the context of the post-Lisbon European Union. Even if
the Charter did not establish any new right, but only reaffirmed, as stated in its
preamble, the rights contained therein (‘as they result from the constitutional
traditions and international obligations common to the Member States, the
European Convention for the Protection of Human Rights and Fundamental
Freedoms, the Social Charters adopted by the Union and by the Council of
Europe and the case-law of the Court of Justice of the European Union and
of the European Court of Human Rights’), the entry into force of the Charter
marked a new season in European constitutionalism. This new phase is wit-
nessed by the case law of the Court of Justice, most notably by the judgments
concerning the enforcement of intellectual property rights in the digital age.
The chapter authored by Tuomas Mylly is then specifically devoted to

the balance between copyright and other fundamental rights as framed in
the judgments delivered by the Court of Justice. The contribution develops
a deep critique of the methodology used by the Court in its latest stances in
the context of the ‘European information society law’, and notably of the con-
ceptual framework behind the most important cases based on fair balance and
proportionality. According to this critique, the approach of the Court of Justice
would not resolve the bias inherent to a conceptualisation of copyright which
frequently ends up disregarding other competing values such as freedom of
expression (which unlike copyright generally protects the weaker party).
Oleg Soldatov, in his chapter, articulates an analysis of the case law of the
other European court, the European Court of Human Rights. The author draws
a remarkable distinction between the case law regarding the attitude of the
European Court in the bricks-and-mortar world of atoms and that where the
playground for balancing copyright and other fundamental rights is the virtual
world of bits. According to Soldatov, even if this second branch of case law is
still ‘in its infancy’, it shows the attitude of the Court to acknowledging a wider
margin of appreciation for national authorities for purposes of intellectual
property rights protection.
Evangelia Psychogiopoulou considers the role played by copyright as
a mechanism for fostering cultural diversity in the European Union and its
implications for the exercise of cultural rights. In her chapter, she explores the
sophisticated system of exceptions and limitations and of measures to protect
copyright holders enshrined in EU copyright legislation, including the Digital
Single Market Directive. The latter’s provisions, if properly implemented, may
work as measures to support access to cultural content alongside support for
creativity and cultural investments and thus promote cultural diversity.
Giovanni Maria Riccio speculates on the influence of the case law of
the Court of Justice on Member States’ authorities in the interpretation of
copyright law. Looking at the recent stances concerning the role of digital
platforms hosting copyrighted content, the author observes that in spite of the
important set of judgments handed down by the Court, its case law still seems
to suffer from some vagueness in a variety of respects. The lack of crystal-clear
guidelines would prevent national courts from taking advantage of a certain
degree of harmonisation and uniformity, a gap that the Digital Single Market
Directive seems to be equally unable to fill.
Switching to a horizontal comparison, Maria Lillà Montagnani and Alina
Trapova analyse differences and similarities between the US and the European
models of balancing copyright with fundamental rights. The authors observe
that at first sight and in theory the US and the EU systems are not so far from
one another since their general frameworks coincide in that both entail internal
and external balancing mechanisms. Nonetheless, the authors argue that when
Introduction 5
looking at the cases from the two jurisdictions it emerges that the US clearly
places stricter reliance on the internal copyright safeguards. Yet, in both
systems the judiciary has employed a certain degree of flexibility when bal-
ancing copyright and other constitutional rights. In developing this argument,
they focus in particular on the role of exceptions and limitations, fair use and
the idea/expression dichotomy as well as that of the interpretative techniques
(such as proportionality and the balancing test), questioning whether the use
of such categories will further reduce or widen the gap between the two sides
of the ocean.
Giorgio Giannone Codiglione and Marco Bassini apply a comparative
analysis to explore the differences between private and public enforcement
in the digital age. Most notably, they speculate on the reasons behind the
emergence of new administrative procedures which paralleled the already
existing traditional private enforcement mechanisms. The chapter delves into
a comparison between the French HADOPI law and the Italian regulation
adopted by AGCOM. The authors highlight that the different outcomes of
these procedures may have depended on the remedies available to contrast
copyright infringements on the internet and on the different degree of involve-
ment of internet service providers, most likely in light of the uncertainties of
the relevant legal regime.
This overview is by no means exhaustive; however, it aims to point out
the problems which the recent legislative reforms and developments in case
law seem far from having resolved. These problems, accordingly, will likely
remain part of the political agenda of the European Union and Member States
for some time.
2. ‘Speaking truth to power’: copyright
and the control of speech
Fiona Macmillan
1 INTRODUCTION
The division between public and private law is the legal system’s own special
take on a larger debate about the meaning and impact of attempts to make and
maintain the distinction between what is properly located in the public sphere
of life and what is, by its nature, private. As much as we might question its
theoretical and empirical validity, the distinction between public and private
law exerts normative force over attempts to theorize and understand law in
a variety of areas.1 At some level, and as this chapter tries to demonstrate,
we know there is a problem here. We know that this mode of organizing and
categorizing law creates systemic dissonance that is never resolved because
the eye of law, focussed on the maintenance of this division, fails to see the
problem. It fails to see that distinguishing between what is public and what is
private in terms of legal rights can never be simple or precise. It fails to see
that, whatever the law says, private and public rights and duties have a way
of bleeding into each other in their real life applications. In some ways, this
problem is a consequence of the larger failure to acknowledge the fact that
nothing enforced by a publicly administered legislative and judicial system can
ever be considered truly private. But this is only the beginning of the compli-
cations that this distinction produces.
The various laws regulating speech or speech acts must always focus on
a moment that is, in some sense, public – or, perhaps it would be better to
say, that they do not attach in the sort of situations that might be considered
to be clearly private. Leaving aside regimes that clandestinely collect infor-
1
Scott Veitch, ‘Law and the public/private distinction’ in Emilios Christodoulidis,
Ruth Dukes and Marco Goldoni (eds), Research Handbook on Critical Legal Theory
(Edward Elgar Publishing 2019).
6
‘Speaking truth to power’: copyright and the control of speech 7
mation on things that people say in domestic settings2 – and, for the moment,
leaving aside the possibility that such speech is now recorded by one or other
of the technological devices that we think is providing us with a domestic
service – direct legal consequences do not attach to things that we say in what
we hopefully describe as ‘the privacy of our own home’. This distinguishes
speech from other acts that do not enjoy a similar immunity. Acts of criminal
violence or tortious negligence, to take two examples, attract adverse legal
consequences whether performed in public or private. The idea that speech can
inhabit a private zone where law does not follow might account for particular
instances of resistance to the idea that its regulation might have significant
public effects. The various areas of law governing speech disclose no consist-
ent approach to these questions. Defamation law, for example, which governs
speech acts in public but makes them the subject of private rights to limit
speech, has – at least in some jurisdictions – taken on board some of the public
consequences of giving individuals control over speech in the public sphere.
However, the obvious limits to complete freedom of speech that defamation
law comprises have been regarded as significant only in relation to the ability
of those considered to be ‘public figures’ to sue for defamation. The common
law development in this area owes much to the well-known United States
case of New York Times Co. v Sullivan,3 in which the Supreme Court made
the constitutional protection of freedom of speech in the First Amendment
applicable to certain defamation actions by holding that a public official was
only able to maintain an action for defamation in relation to his or her official
capacity if the public official was able to prove malice on the part of the person
making the alleged defamatory comment. The reasoning in New York Times
Co. v Sullivan rests, in part, on the importance of freedom of expression on
what seem to be unambiguously public matters.4 Subsequently, the United
Kingdom House of Lords (as it then was) in Derbyshire County Council v
Times Newspapers Ltd5 was influenced by similar considerations when it
decided that municipal corporations should not be able to sue for defamation,
as was the Australian High Court in Theophanous v Herald and Weekly Times6
2
I am thinking here of the sort of surveillance that characterized a number of
regimes behind the so-called Iron Curtain, including that of the German Democratic
Republic (East Germany), portrayed in Florian Henckel von Donnersmarck’s film, The
Lives of Others (Wiedemann/Berg 2006) and in Anna Funder, Stasiland: Stories from
behind the Berlin Wall (Granta 2003).
3
376 US 254 (1964).
4
376 US 254 (1964), at 269ff. See also ‘Libel and the corporate plaintiff’ (1969)
69 Columbia Law Review 1496, 1501–2.
5
[1993] 2 WLR 449. See also Fiona Patfield (Macmillan), ‘Defamation, freedom
of speech and corporations’ (1993) The Juridical Review 294.
6
(1994) 124 ALR 1.
in deciding that politicians should not be able to sue for defamation in relation
to certain matters touching their office.
This pattern of decision-making, which focusses on permitting a wider
range of speech in relation to those wielding certain types of power, has also
had an impact on judicial approaches to controlling speech said to be in breach
of confidence. In Commonwealth jurisdictions it still seems as though the (or,
at least, a) high-water mark in this respect was the Spycatcher litigation, in
which courts around the common law world considered the extent to which
the public interest in the protection of free speech might justify breaching
confidence with respect to the national security activities of government.7 The
approaches of the various courts before which this litigation took place are
consistent with the thread already identified in relation to the free speech/defa-
mation relationship: namely, that freedom of speech considerations are strong
where the speech in question addresses itself to a manifestation of power, and
this is particularly so when the power in question is somehow related to public
administration and government.8 Nevertheless, a long line of case law makes it
clear that, at least so far as breach of confidence is concerned, there is a public
interest in protecting freedom of speech that goes beyond speech focussing on
government.9
Given the role of copyright as another important right regulating speech, one
might have expected to see similar developments in copyright jurisprudence.
However, the least ambiguous cases in which freedom of speech consider-
ations have affected the scope of copyright most often occur in those cases
where there is a dual, or alternative, claim for breach of copyright and breach
of confidence.10 The public/private divide in legal discourse clearly has a role
in explaining copyright’s particular resistance to limitations imposed on it in
the name of freedom of speech. However, this factor seems to have had more
7
In Australia, AG (UK) v Heinemann Publishers Australia Pty Ltd and Wright
(1987) 10 NSWLR 86 (CA, NSW) and (1988) 78 ALR 449 (HCA); in New Zealand,
AG (UK) v Wellington Newspapers Ltd [1988] 1 NZLR 129; in the United Kingdom,
AG v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109 (HL). See also Fiona Patfield
(Macmillan), ‘The House of Lords decision in the Spycatcher litigation’ (1989) 1
European Intellectual Property Review 27; id, ‘Spycatcher worldwide – An overview’
(1989) 6 European Intellectual Property Review 201.
8
For earlier examples of breach of confidence cases involving speech about
government activities, see AG v Jonathan Cape Ltd [1976] QB 752 (QBD) and
Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 32 ALR 485 (HCA).
9
See, e.g., Gartside v Outram (1856) 26 LJ Ch 113; Hubbard v Vosper [1972] 1
All ER 1023; Beloff v Pressdram [1973] 1 All ER 241; Woodward v Hutchins [1977]
2 All ER 751; Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892; Lion
Laboratories v Evans [1985] QB 526.
10
E.g., Beloff v Pressdram (n 9); AG v Guardian Newspapers Ltd (No. 2) (n 7).
impact in relation to copyright than in relation to other areas of so-called

private law regulating speech, such as defamation and breach of confidence.
There is a range of possible explanations for this. One of them might be the
ambiguity that surrounds the characterization of copyright as a speech right.
Not all theorists of copyright would subscribe to this characterization.11
Nevertheless, some of the most interesting theoretical literature in copyright is
that which argues that copyright’s role as a fundamental cultural and political
right turns, or should turn, on its relationship with speech rights.12 Another,
perhaps even more plausible explanation for copyright’s apparent resistance
to freedom of speech considerations is the fact that it is not just a restriction
on speech but, rather, a private property right that imports a restriction on
speech.13 This not only links it to a type of fundamentalist legal discourse of
property rights,14 it also gives it a particular economic significance. Of course,
the speech restrictions in breach of confidence and defamation actions can also
have economic significance (especially when they are being used to vindicate
corporate interests) but they do not import property rights and so, in compar-
ison to copyright, it is less easy to characterize them as investment rights in
a system of capitalist accumulation.15
11
See William Fisher, ‘Theories of intellectual property’ in Stephen R. Munzer
(ed.), New Essays in the Legal and Political Theory of Property (Cambridge University
Press 2001); Jeremy Waldron, ‘From authors to copiers: Individual rights and social
values in intellectual property’ (1993) 68 Chicago-Kent Law Review 841.
12
For a temporal arc of some of the foundational scholarship in this respect, see
Neil W. Netanel, ‘Copyright and a democratic civil society’ (1996) 106 Yale Law
Journal 283; Jonathan Griffiths and Uma Suthersanen (eds), Copyright and Free
Speech: Comparative and International Analyses (Oxford University Press 2005);
Neil W. Netanel, Copyright’s Paradox (Oxford University Press 2008); Carys J. Craig,
Copyright, Communication and Culture: Towards a Relational Theory of Copyright
Law (Edward Elgar Publishing 2011); Anne Barron, ‘Kant, copyright and communica-
tive freedom’ (2012) 31 Law & Philosophy 1; Abraham Drassinower, What’s Wrong
with Copying? (Harvard University Press 2015). See also Fisher (n 11) 189–94.
13
Even if it is the case that this characterization carries its own theoretical problems
and misgivings: see, e.g., the essays collected in Helena R. Howe and Jonathan Griffiths
(eds), Concepts of Property in Intellectual Property Law (Cambridge University Press
2013); Jose Bellido, ‘Book review: Concepts of Property in Intellectual Property Law’
(2014) 2 Birkbeck Law Review 147, which contains an excellent survey of the theoreti-
cal literature on copyright as a property right.
14
Usually depending on Lockean arguments (see Fisher (n 11) 184–9), but some-
times also invoking a Kantian natural rights discourse; see Barron (n 12).
15
On this characterization of copyright, see Fiona Macmillan, ‘Looking back to
look forward: Is there a future for human rights in the WTO?’ (2005) 6 International
Trade Law and Regulation 163; Fiona Macmillan, ‘The World Trade Organization
and the turbulent legacy of international economic law-making in the long twenti-
eth century’ in Julio Faundez and Celine Tan (eds), International Law, Economic
Investigating the proposition that copyright should be understood as

a speech right and focussing on its character as a property and investment right,
this chapter considers what role freedom of speech principles should play in
copyright law. Part 2 of the chapter examines the values of free speech in the
general context of the division between public and private, and in the specific
context of copyright restrictions on speech. It attempts to pursue and analyse
the distinction between limitations on freedom of speech that might be said to
relate to public matters and those that appear to fall within some type of private
domain. Part 3 inverts this analysis, considering the social value of copyright
and its relationship to the values of free speech.
2 THE VALUE OF FREE SPEECH
2.1 Justifying Free Speech
When we talk about freedom of speech, we are never talking in terms of

absolutes. If the principle of freedom of speech were regarded as an absolute
then governments would not be able to protect national security information,
there would be no action for defamation, no possibility of protecting confi-
dential information of any type, no restrictions on the availability of hardcore
child pornography, nor on any extreme racist speech and so on (and on).16
As the normative claim in the title to Stanley Fish’s well-known book on
the subject says, There’s No Such Thing as Free Speech … And It’s a Good
Thing, Too.17 The non-absolute nature of the right to free speech is, of course,
also recognized in constitutional documents.18 In the context of copyright
law, and despite the fact that its claims are generally not recognized as a limit
on the constitutional protections, the exclusive rights given by copyright
law to authors and publishers (indeed copyright law itself) would probably
be wiped away by an absolute concept of free speech. There are those who
would welcome such a regime; however, I do not think that the editors of this
book are amongst them and, despite what follows, nor am I – or, at least, not
totally. Accordingly, I am using this brief account of the three main theoret-
Globalization and Developing Countries (Edward Elgar Publishing 2010); Fiona

Macmillan, ‘Copyright and cultural rights’ in Helle Porsdam and Lucky Belder (eds),
Negotiating Cultural Rights: Issues at Stake, Challenges and Recommendations
(Ashgate 2017).
16
See Richard Abel, Speech and Respect (Sweet & Maxwell 1994) on the social
costs of unlimited free speech.
17
Stanley Fish, There’s No Such Thing as Free Speech … And It’s a Good Thing,
Too (Oxford University Press 1994).
18
E.g., the European Convention on Human Rights, Art. 10.
ical justifications of the free speech principle in order to reflect on a limited

concept of free speech that might work with, rather than eliminate, copyright.
The remainder of this section, accordingly, considers the justifications of free
speech as truth promoting, as a fundamental human right, and as essential to
the preservation of democracy. It seeks to make some assessment of these the-
ories in the light of copyright’s limiting effect on at least some types of speech.
2.1.1 Speech and truth

The argument that free speech promotes truth is generally credited to John
Stuart Mill, although Mill was in this respect anticipated by the poet and repub-
lican revolutionary John Milton.19 Mill’s theory understands truth as absolute,
rather than relative.20 Its value is of fundamental ethical importance as well as
being significant in securing social development or progress. For Mill, truth is
out there and waiting to be found. And it will be found by allowing people to
say whatever they like. True or false, contributions to public debate are impor-
tant. The importance of ‘true’ statements will be to inform proper government,
while the benefit of permitting ‘false’ statements will be that those in posses-
sion of the truth will be encouraged to articulate it in public debate with those
peddling falsehoods. As is clearly evident, there are plenty of problems with
this theory. In our world of information overload, split-second communication
and endless amounts of fake news, the claim that truth will emerge from public
debate is itself debatable. The current level of public debate is so superficial
that it’s not easy to believe in it as an arbiter of truth. In any case, the idea
that truth is absolute is debatable, as are the circumstances under which such
a claim might be considered legitimate. Given these reservations, one might
reasonably conclude that Mill’s theory overrates the value of free speech and
exaggerates its importance in relation to other devices for promoting public
debate. Perhaps it could be argued that incentivizing the production and
dissemination of works of the mind through the device of copyright is just as
important.
And, even if we were to accept the broad claims of this theory, we might still
want to be more specific about exactly what kinds of speech might have this
19
Eric Barendt, Freedom of Speech (2nd edn, Oxford University Press 2007),
Ch. 1, citing John Stuart Mill, On Liberty (Everyman 1972, first published 1859) and
John Milton, Areopagitica: A Speech for the Liberty of Unlicensed Printing (1644) in
Prose Writings (Everyman 1958). In relation to Milton’s view of the system of press
licensing, which may be regarded as a forebear of modern copyright law, see W.S.
Holdsworth, ‘Press control and copyright in the 16th and 17th centuries’ (1920) 29 Yale
Law Journal 841, 850–51.
20
See Barendt (n 19).
revelatory effect on truth.21 Are we concerned here with statements of (alleged)

fact, statements of opinion, or both? Can we recognize the difference between
the two? Is there speech that cannot be categorized as either fact and/or
opinion? What is its status? These sorts of questions might matter to us when
we are thinking about copyright and free speech. Copyright restrictions can
attach to a lot of different types of speech acts. These range from works that are
capable of representation in writing, through two- and three-dimensional works
of visual art, to sound recordings, films and broadcasts. Any one of these types
of speech can be categorized as a statement of fact (for example, the instruc-
tions on a bottle of fertilizer22 or, perhaps a non-fiction book, such as a history
book23) or a statement of opinion (of which the examples are numerous and
would include a great number of things generally characterized as being part
of the fine arts) or something that might be a mixture of fact and opinion (such
as a documentary film, a book on freedom of speech, and so on). There are
also speech acts protected by copyright that do not seem to fall comfortably
into the categories of fact and/or opinion (such as commercial advertising and
certain forms of adult entertainment). Would Mill’s truth argument in support
of free speech impact on all copyright restrictions or only on particular types?
If it only applies to statements of fact then maybe we can skate around freedom
of expression problems on the basis that copyright restricts only the way in
which an idea is expressed, rather than the idea itself, which can usually be
put into other words.24 On the other hand, if it is the case that Mill’s theory has
particular application to ‘the discussion of political, moral and social affairs’,
as Barendt suggests,25 then more difficulties might arise because, so far as
this type of speech is concerned, there may be occasions when the expression
used is as important to its impact as the idea that informs it. This is perhaps
particularly true in relation to visual representations such as photographs and
documentaries.26
21
Ibid.
22
See, e.g., Elanco Products Ltd v Mandops (Agrochemical Specialists) Ltd [1980]
RPC 213.
23
See, e.g., Ravenscroft v Herbert [1980] RPC 193.
24
There is some authority for the proposition that when an idea can be expressed
in only one way then its expression is not protected by copyright, see, e.g., Total
Information Processing Systems Ltd v Daman Ltd [1992] FSR 171; and (maybe)
Kenrick v Lawrence (1890) 25 QBD 29.
25
Barendt (n 19).
26
See Dorean M. Koenig, ‘Joe Camel and the First Amendment: The dark side of
copyrighted and trademark-protected icons’ (1994) 11 Thomas M Cooley Law Review
803, 814, citing Melville Nimmer, Freedom of Speech: A Treatise of the Theory of the
First Amendment, vol. 2.05 [C] (Matthew Bender 1984) 2.
2.1.2 Speech and human rights

The theory of free speech as a basic human right understands it as being
essential to individual liberty and self-fulfilment.27 It is treated in this way in
constitutional documents of historic, legal and mythical significance, such as
the Constitution of the United States of America and the European Convention
on Human Rights.28 It has enjoyed special treatment compared to other things
that might be thought important to self-fulfilment, such as access to adequate
clean water, food, accommodation, medical care.29 One explanation for this is
that, like other so-called political and civil rights, it is negative in nature with
the consequence that its breach is more easily remediable in legal proceedings.
In comparison to Mill’s argument, which focusses on the importance to
society of free speech, the argument from the right to self-fulfilment seems to
focus on its importance to the speaker. This suggests that, like Mill’s argument
but for different reasons, this justification for protecting freedom of speech is
particularly focussed on the expression of opinions. This makes it applicable
to much material that is subject to copyright law. However, it is sometimes
suggested that free speech as a fundamental human right may have a restricted
role in the dissemination of material that is predominantly factual in nature.30
This might limit its utility when applied in the copyright context, where
things like some types of photographs or documentary film footage might be
considered to be more like statements of fact than opinion. Strong arguments
might be made to the effect that an important aspect of the freedom of speech
principle is that it also protects the right to access certain forms of speech.
In other words, perhaps the problem in understanding the freedom of speech
principle as a fundamental human right is that it concentrates on the interests
of the speaker to the exclusion of the interests of the audience.
2.1.3 Speech and democracy

The final argument considered here in favour of a principle of free speech,
that it is essential to the preservation of democracy,31 picks up on these linked
distinctions between the interests of the speaker and the interests of the audi-
ence and between dissemination of factual information and dissemination of
27
See Ronald Dworkin, Taking Rights Seriously (Duckworth 1977); Barendt (n
19).
28
Constitution of the United States of America, First Amendment; European
Convention on Human Rights, Art. 10.
29
Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge University
Press 1982) 55–6.
30
Barendt (n 19).
31
For a strong endorsement of this position, see, e.g., Alexander Meiklejohn, ‘The
First Amendment is an absolute’ (1961) Supreme Court Review 245.
opinion. If freedom of speech is essential to securing a fully informed citizenry

able to play an active part in the democratic political process, then the ambit
of that freedom must surely encompass both these matters. The appeal of this
argument in the present context is that it focusses on the public right to access
certain information, irrespective of the private restrictions imposed by intel-
lectual property law. Of course, as always, the problem here is where to draw
the line between material that is sufficiently relevant to the political process
to overcome private property rights and that which is not. By focussing on the
democratic or political process, this argument not only gives a special status
to political speech, but raises difficult questions about how to identify such
speech. Nevertheless, this justification of the free speech principle has much
to offer the endeavour of finding an accommodation between a broad concept
of freedom of speech that focusses on both the right to speak and the right to
receive information and private rights to restrict and control speech, such as
those conferred by copyright. Such an accommodation does not necessarily
have to be oppositional. It might also tell us something about the proper limits
of copyright as a speech right that should enhance the public sphere rather than
reduce it by the creation of extensive private property restrictions.32
2.2 Significance of the Public/Private Distinction
One difficulty in using the commonly asserted theoretical justifications for free
speech examined above in developing a coherent freedom of speech concept
in relation to copyright is the notable emphasis (at least in two of them) on
the role of freedom of speech in public affairs and/or the safeguarding of the
democratic system. One consequence of this emphasis might be to underrate
the importance of freedom of speech in relation to what might be called
cultural speech, such as artistic and scholarly speech, which is substantially
regulated by copyright restrictions. The (perfectly reasonable) argument that
such speech is also political would reduce copyright to almost nothing and,
more importantly, probably also dilute the importance of the concept of the
political in the freedom of speech justifications. Another possible consequence
of the emphasis on the public sphere and the protection of political speech is
the drawing of a distinction between political and commercial speech where
political speech enjoys freedom of speech protections that are not afforded to
commercial speech. This would leave room for a concept of copyright that
protected commercial speech, but it would also run the risk of limiting speech
in relation to significant sites of power.
32
See, e.g., Netanel (1996) (n 12); Netanel (2008) (n 12); Drassinower (n 12).
In attempting to formulate a freedom of speech theory that is broad enough

to protect free speech rights across the board, and especially across the border
between public and private law, there seem to be two possible, not necessarily
exclusive, approaches. One is to pick and choose from amongst the free speech
theories, relying on the broad approach of the democracy theory in relation to
the opinion/information and the speaker/audience divisions, but widening the
ambit of the material to which it is applied by reference to Mill’s theory and
the theory about self-fulfilment. In other words, achieving what is perceived
as necessary by creating a theoretical mishmash. The other possible approach
is to question the public/private divide upon which all this rests. In fact, this
divide raises a lot of questions that are not only difficult to answer, but are
also not asked often enough. Is any right enforceable through the court system
really private? Is anything said to the – or a – public really private? Is com-
mercial or personal speech really not political? There are persuasive arguments
that any or all information in the hands of government is potentially politically
significant and so ought to be freely available.33 But to what extent does the
force of this argument lie in the nature of the information and the uses to which
it can be put, rather than the mere fact of its being in government hands? And
is this not particularly the case at this historic point where governments around
the world have developed an extensive taste for outsourcing what were once
thought to be core governmental activities to the private sector?
And it is not just the type of material that might be covered by the freedom
of speech principle that is in question here. To have any meaning at all the
principle also needs to address the question of power. The theories canvassed
above generally frame the right to speak freely as one against the state. While
once one might have thought of the state as, if not the repository then at least
the source of all power in society, this proposition is becoming increasingly
more difficult to sustain. State action, or the failure of the state to act, has
produced aggregations of non-state power that now outstrip the state’s ability
to constrain them. This is evident as much in the rise of systems of commu-
nication that transmit all sorts of information to all corners of the globe in the
blink of eye, as it is in the long, slow and relentless rise of the multinational
or transnational corporate sector.34 From its beginnings, copyright law, which
is significantly implicated in these more recent developments, was a device
under which state action produced private systems of power that restricted
33
E.g., Robert M. Gellman, ‘Twin evils: Government copyright and copyright-like
controls over government information’ (1995) 45 Syracuse Law Review 999.
34
See, e.g., Fiona Macmillan, ‘The emergence of the World Trade Organization:
Another triumph of corporate capitalism?’ in Fleur Johns, Richard Joyce and Sundhya
Pahuja (eds), Events: The Force of International Law (Routledge/Taylor & Francis
2010).
speech. The system of press licensing established by the English Tudor mon-
archs, which was precursor to modern copyright law, gave substantial power
to control all publications to the Company of Stationers.35 The purpose of this
was the imposition of a censorship regime operated, not by the government,
but by a separate body of individuals. This power persisted until the end
of the seventeenth century when arguments about hardship to authors, the
adverse impact on learning, and on individual liberties meant that the relevant
legislation was not renewed.36 While the succeeding Copyright Act of 1709,
the first of the modern English copyright statutes, may have moved copyright
away from the censorship system used by the Tudor and Stewart monarchs,
the edifice that has been built upon it has provided the basis for the build-up
of considerable ‘private’ power in the hands of the media and entertainment
corporations.37
The question of corporate power built on the edifice of copyright, and its
implications for freedom of speech, are further examined in the third and final
section of this chapter. The point to be underlined here is that the various
theoretical justifications of the free speech principle do not take sufficient
account of what might be described as private power. This creates difficulty in
using these theories to form a free speech principle in relation to copyright. We
need to recognize instead that the public/private distinction is an arbitrary and
slippery one, especially in so-called liberal democracies. There is a line of US
defamation cases that appear to recognize this point, extending the principle
in New York Times Co. v Sullivan that a public official cannot maintain an
action in relation to their official capacity without proving malice in ways that
recognize the significance of so-called private power,38 but there has been little
recognition of this point in relation to copyright law.
3 APPLYING THE FREE SPEECH PRINCIPLE TO

COPYRIGHT
It is clear that to understand the free speech principle as a right against the state
would greatly limit its application in the copyright context. Effectively, its only
application in such a case would be to constrain government from restricting
35
Holdsworth (n 19).
36
Ibid, 855–6.
37
Abel (n 16) 48–58; Fiona Macmillan, ‘Commodification and cultural ownership’
in Griffiths and Suthersanen (n 12).
38
See the line of cases established by Curtis Publishing Co. v Butts, 338 US 130
(1967) and Gertz v Robert Welch Inc., 418 US 323 (1974).
speech through the use of copyright.39 However, for reasons canvassed above,
limiting the free speech principle to state or ‘public’ power is problematic
because what constrains speech is the exercise of disproportionate power, and
it is not clear why it should matter whether this power is exercised by the state
or otherwise. Figures that are technically ‘private’ can constrain speech with
remarkable effectiveness. To the extent that freedom of speech theories do not
take private power into account they have failed to keep up with social and
economic developments and are in need of some consequential refinements. In
particular, so far as copyright is concerned, this chapter argues that freedom of
speech principles should restrain not just state attempts to restrict speech using
copyright but also such attempts by those holding significant non-state power.
As already noted, the justificatory theories for a principle of free speech also
raise questions about the type of speech to which they apply. The argument
from democracy appears to justify the protection of free speech involving fact,
information, and expressions of opinion, which would seem to have a sub-
stantial overlap with the sorts of speech that might be restricted by copyright.
However, the democracy justification might be regarded as limited to things
that are to be somehow defined as ‘political’. There are some things that obvi-
ously fall inside the usually understood scope of the political. So, for example,
a speech relating to matters of present legislative concern or debate about those
holding political office are clearly within the scope of this concept. A good
argument might also be made that it covers the information and opinion on
matters of public concern. This would cover a wide range of things and extend
to much of what might be called artistic speech, such as speech in novels,
plays, paintings, sculpture and film. It seems undeniable that plenty of artistic
speech of this type is political.40 The application of a free speech principle to
artistic speech might also be justified according to Mill’s truth theory. This
theory, which applies mainly to opinion, might also be used in relation to
39
In any case, not all states permit their governments to hold copyright in docu-
ments they produce: see, e.g., the position in 17 USC 105 (1988). The Berne Convention
for the Protection of Literary and Artistic Works (Paris Act, 1971), Art. 2(4), makes this
a matter for individual determination for the states in the Berne Union. The same posi-
tion applies under the World Trade Organization Agreement on Trade-Related Aspects
of Intellectual Property Rights, Art. 9(1). For a general discussion of this point, see
Gellman (n 33).
40
Examples of this abound; as does the capacity of cultural works to redefine politi-
cal space, as to which see, e.g., Costas Douzinas, Philosophy & Resistance in the Crisis
(Polity 2013) 196–7: ‘Public art, film shows, music performances, literary readings and
debates in squares would produce an alternative political culture. These proposals aim
at repoliticizing politics and introducing the ethos of the collective into all aspects of
public life.’ See also Gerard Delanty, Liana Giorgi and Monica Sassatelli, Festivals and
the Cultural Public Sphere (Routledge 2013).
things such as scholarly writing and journalism. All these types of speech are,
subject to time limitations, covered by copyright and none of them is excluded
from the free speech protections of either the US Constitution or the European
Convention on Human Rights.
As already noted, one of the most difficult forms of speech to accommodate
within the justificatory theories of free speech is commercial speech. There
has been a long and substantial line of US jurisprudence on the question of the
extent to which freedom of commercial speech is constitutionally protected.41
The position now appears to be that commercial speech is protected if it is not
unlawful or misleading, with the result that any purported restriction on com-
mercial speech is only consistent with the First Amendment if that restriction
‘directly and materially advances a substantial state interest in a manner no
more extensive than necessary to serve that interest’.42 The justification for
the improvement in the status of commercial speech over time is that ‘[t]he
commercial marketplace, like other spheres of our social and cultural life, pro-
vides a forum where ideas and information flourish’.43 Nevertheless, under US
constitutional law, commercial speech does not seem to enjoy the same levels
of protection as some other forms of speech, such as explicitly political speech
or artistic speech. This, of course, means that it is necessary to work out the
difference between commercial speech and other types of speech. For the US
Supreme Court commercial speech appears to mean speech engaged in for the
sole or predominant purpose of commercial gain, such as advertising.44 This
means that speech would not be commercial merely because it resulted in com-
mercial gain. The types of copyright works amounting to commercial speech
might be texts of advertisements, musical jingles for advertisements, the film
footage of an advertisement, and commercial logos. However, despite making
lists of this sort, it is nevertheless clear that the categories of political, artistic
and commercial speech bleed into one another in ways that might sometimes
make it difficult to distinguish between them.
These types of distinctions are not, of course, made by copyright law, which
imposes restrictions on speech by way of a statutory monopoly irrespective of
41
See, e.g., Valentine v Chrestensen, 36 US 52 (1942); Bigelow v Virginia, 421
US 809 (1975); Virginia State Board of Pharmacy v Virginia Citizens Consumer
Council, 425 US 748 (1976); Central Hudson Gas & Electric Corp. v Public Service
Commission of New York, 447 US 557 (1980); City of Cincinnati v Discovery Network,
Inc., 113 S Ct 1505 (1993); Edenfield v Fane, 113 S Ct 1792 (1993); Ibanez v Florida
Department of Business and Professional Regulation, 114 S Ct 2084 (1994).
42
Ibanez v Florida Department of Business and Professional Regulation (n 41)
2088, although there are some cases that may not be reconcilable with this approach.
43
Edenfield v Fane (n 41) 1798.
44
See, e.g., Central Hudson Gas & Electric Corp. v Public Service Commission of
New York (n 41). See also Koenig (n 26) 832–5.
its typology according to freedom of speech principles. As Goldstein, who was

one of the first commentators to notice this issue, wrote:
Implicit in the statutory monopoly is the copyright owner’s right to withhold his
expression from the public. A consequence of this basic right of the owner is his
right to delimit the size and economic status of the audience to which the work shall
be disseminated by specification of the number and price of the copies to be sold.45
Assuming for the moment that such rights also conflict with the freedom of
speech principle, then it follows that this principle may prevent the enforce-
ment of some of the exclusive rights conferred by copyright. Proceeding on
the basis of the justificatory discourse of the free speech principle, the level
of non-enforceability of the exclusive rights conferred by copyright would
be determined in accordance with the importance of the particular type of
speech as characterized according to the free speech discourse. Accordingly,
copyright would not be permitted to place excessive restrictions on informa-
tion or opinion relating to explicitly political debate, nor that which relates to
moral, scholarly or artistic expression. On the other hand, this approach would
suggest that we should be reluctant to relax copyright restrictions in relation
to copyrighted commercial speech as such speech appears to rate lower pro-
tection according to the freedom of speech principle. This is the point where
this type of argument seems to lead us into a paradox. Our world, on-line and
off-line, is saturated by advertising. In fact, given the prevalence of advertising
as a business model for online platforms and search engines, it may be difficult
to distinguish between advertising and other speech. And clearly the power of
advertisers in shaping the world is immense. (This power would explain, for
example, why we continue to consume vast amounts of unnecessary products
even at the expense of the survival of the planet as a habitable environment for
human life.) Advertisers would, I imagine, be delighted to hear that their cop-
yrightable speech – including text, images, jingles and icons – was entitled to
a higher level of copyright protection than forms of political or artistic speech.
Likewise those wishing to breach copyright in order to gain a commercial
advantage by free-riding on the works of others, would probably be pleased
to hear that political and artistic works would be subject to a lesser standard
of copyright protection. Focussing just on the nature of the copyright work,
assessed in accordance with its significance in the freedom of speech context,
produces some strange results.
These results seem strange because they appear to ignore the values that
are served by copyright law. If freedom of speech is not an absolute principle
45
Paul Goldstein, ‘Copyright and the First Amendment’ (1970) 70 Columbia Law
Review 983, 989.
the reason for this must be the need to accommodate its value with other
values regarded as having importance. In order, therefore, to proceed towards
some sort of accommodation between freedom of speech and the restrictions
imposed by copyright it is necessary to make some assessment of the social
value(s) that are reflected by the justification(s) for copyright restrictions.
It is at this point that the waters become even more muddy because, while
the restrictions imposed by copyright law have two dominant justificatory
discourses, there is considerable disagreement and contention about if and
how it should be justified, and to what extent these justificatory discourses
reflect the reality of copyright’s application to speech in the real world.46 Both
justificatory discourses cast a rosy, and even romantic, light on copyright
law.47 Amongst those prone to be receptive to this type of thing, who would
not have been seduced by the attractions of the incentive-based justification,
with its promises of ever more cultural production and innovation? And, as for
the natural rights theory, the life-affirming qualities of the idea of recognizing
the special status of acts of cultural production and those who engage in them
is more or less evident. Critical engagement with copyright law has, however,
exposed its uncertain and compromised relationship with a range of concepts
that inform these justificatory discourses. The copyright treatment meted out to
things such as authorship, creativity and cultural production – not to mention
their specific instantiations in literature, drama, dance, art, music and film –
have been exposed in a probing, excellent and often interdisciplinary literature
that inevitably dowses overly romantic sensibilities.48 This body of literature
46
The scale of this contention might be understood by reference to the fact that it
often goes under the rubric of ‘the copyright wars’, which are one part of the greater
conflict over intellectual property: see, e.g., Adrian Johns, Piracy: The Intellectual
Property Wars from Gutenberg to Gates (University of Chicago Press 2010); Peter
Decherney, Hollywood’s Copyright Wars: From Edison to the Internet (Columbia
University Press 2012); Peter Baldwin, The Copyright Wars: Three Centuries of
Transatlantic Battle (Princeton University Press 2014).
47
For two accounts of these discourses, see Fisher (n 11) and Waldron (n 11).
48
There is a large literature here, of which an indicative list might include the fol-
lowing: Rosemary J. Coombe, The Cultural Life of Intellectual Properties: Authorship,
Appropriation and the Law (Duke University Press 1998); Craig (n 12); Jane Gaines,
Contested Culture: The Image, the Voice and the Law (University of North Carolina
Press 1991); Eva Hemmungs Wirtén, No Trespassing: Authorship, Intellectual Property
Rights, and the Boundaries of Globalization (University of Toronto Press 2004); Daniel
McClean and Karsten Schubert (eds), Dear Images: Art, Copyright and Culture (ICA
2002); Netanel (2008) (n 12); Patrick Parrinder and Warren Chernaik (eds), Textual
Monopolies: Literary Copyright and the Public Domain (University of London
Press 1997); Mark Rose, Authors and Owners: The Invention of Copyright (Harvard
University Press 1993); David Saunders, Authorship and Copyright (Routledge 1992);
Brad Sherman and Alain Strowel (eds), Of Authors and Origins: Essays on Copyright
addresses, in varying ways and degrees, the mismatch between concepts and
conditions of creativity and cultural production, on the one hand, and their
mutant second life according to copyright (and other intellectual property
laws), on the other. It also reflects on the consequences of copyright’s legal
identity as a property right and the way in which the occidental framing of
the property concept impacts on creativity and cultural production globally.
However, it was perhaps the emergence of a literature on the political economy
of copyright49 that did most to expose its ugly underbelly and the way in which
the romantic discourse of copyright has been corrupted by its engagement with
the capitalist system. The particular point of this literature, and its relevance
in the current context, is that it focusses on the way in which copyright, as
a property right, has been used as a base upon which to build substantial blocks
of power, not only in the market place but also in social and cultural terms.50
This is significant because if freedom of speech is, expressed generally, about
speaking truth to power, and if copyright facilitates the build-up of power, then
this makes accommodation of the two sets of values rather tricky. It suggests
that, as with defamation and the protection of confidential information, where
copyright is a site of power it should give way to free speech principles. This
would move the focus of attention away from the nature or type of speech
copyright is protecting and towards the question of who is the speaker and
what they are saying.
However, at the same time, focussing only on the power of the copyright
owner might result in a type of freedom of speech overkill. If we were to
make a loose comparison with the approach taken in the US to the relation-
ship between defamation and free speech, we would see that power does not
deprive legal persons of the right to sue for defamation. Instead the effect of
power is to make it more difficult. In the case of copyright, making it more
difficult to maintain an action for breach of copyright where the copyright
holder is in a position of power or influence might be achieved by focussing
not on the nature of the speech protected by copyright but rather on the nature
Law (Clarendon 1994); Martha Woodmansee and Peter Jaszi (eds), The Construction
of Authorship: Textual Appropriation in Law and Literature (Duke University Press
1994).
49
In particular, Ronald V. Bettig, Copyrighting Culture: The Political Economy of
Intellectual Property (Westview 1996).
50
E.g., Fiona Macmillan, ‘The cruel ©: Copyright and film’ (2002) European
Intellectual Property Review 483; id, ‘How the movie moguls learned to stop worrying
and love the new technology’ in Leslie Moran, Elena Loizidou, Ian Christie and Emma
Sandon (eds), Law’s Moving Image: Law and Film (Glasshouse 2004); Macmillan (n
37); id, ‘Public interest and the public domain in an era of corporate dominance’ in
Birgitte Andersen (ed.), Intellectual Property Rights: Innovation, Governance and the
Institutional Environment (Edward Elgar Publishing 2006).
of the expression said to infringe copyright.51 In other words, if the infringing

expression is political, artistic or scholarly, then there may be free speech
grounds for arguing that it ought to be tolerated. On the other hand, if the
expression breaching copyright is purely commercial, then the free speech
arguments seem weaker.
Nevertheless, if we are to maintain the position that there is any social
value in copyright law (despite protestations to the contrary) then in trying to
work out how to accommodate copyright and free speech we cannot entirely
abandon a focus on the nature of the copyright work itself. Its relevance is both
on the light it sheds on the proper characterization of the infringing speech and
its own character when measured against the values of copyright law. To make
any sense of this at all, and despite considerable contention about the values
protected by copyright law, we need to make some attempt to assess those
values in what is a contested terrain of strategic positioning about and around
copyright. In making a necessarily brief assessment of this terrain, I leave
aside – for the moment, anyway – the claim that copyright is a self-defeating
restriction on creativity, innovation, free speech and participation in cultural
life.52 Accepting this characterization of copyright at this point in the chapter
would be a cruel joke on readers, and one in which I am not going to indulge
(this time, at least). Instead, for the purposes of understanding copyright’s
social value, I focus here on three broad areas of justification for the copyright
monopoly: first, copyright as a fundamental property right; secondly, copy-
right as a fundamental personal and/or cultural right; and thirdly, copyright
as a means to encourage cultural innovation and diffusion of that innovation.
That copyright is a property right is an accurate statement of its legal nature.
However, the claim that it is fundamental has a certain normative ring to it.
While this position is generally located theoretically in a highly questionable
reading of Chapter 5 of Locke’s Second Treatise,53 sometimes accompanied by
a Kantian natural rights discourse,54 more recent support for it is often derived
51
See also Barendt (n 19).
52
See, e.g., Joost Smiers, Arts under Pressure: Protecting Cultural Diversity in the
Age of Globalization (Zed Books 2003).
53
John Locke, Second Treatise of Government (Awnsham & Churchill 1690), Ch.
5. For its dependence on Lockean arguments, Fisher describes a version of this argu-
ment as labour theory, subjecting it to a pungent critique: see Fisher (n 11) 184–9.
54
Much tends to be made here of the argument in Johann Gottlieb Fichte,
‘Proof of the unlawfulness of reprinting: A rationale and a parable’ in Berlinische
Monatschrift (1793) 443 (translated by Martha Woodmansee and reprinted in Lionel
Bently and Martin Kretschmer (eds), Primary Sources on Copyright 1450–1900,
www.copyrighthistory.org, accessed 9 September 2018, which purports to rely on
the argument in Immanuel Kant, ‘On the wrongfulness of unauthorised publication of
books’ in Berlinische Monatschrift (1785) (translated by Mary J. Gregor and repub-
from human rights instruments, notably Article 15(1)(c) of the International

Covenant on Economic, Social and Cultural Rights. In a number of ways the
claim that copyright (or any other intellectual property right) is a human right
is intellectually unjustifiable and dangerous, particularly so when accompanied
by a discourse that claims a human right to private property.55 The baselessness
of the argument that the grant of private property rights over intellectual output
is mandated by Article 15(1)(c) of the International Covenant on Economic,
Social and Cultural Rights is fairly evident from its text, which recognizes the
rights of authors to have their ‘moral and material interests’ protected, but says
nothing about the grant of private property rights in order to achieve this end.
This was recently acknowledged in a report issued by the Special Rapporteur
in the field of cultural rights, even if the same report left the idea that there
is a human right to private property untouched.56 Looking at the content of
copyright law generally, the evidence for the argument that copyright is a fun-
damental property right is weak, even if it is clear that it is a property right.
Further, in the present context, accepting that copyright involved some sort of
non-speech-related human right would create a conflict with the human right
to free speech that is not easy to resolve.
A fundamental rights claim is also at work in the second justification identi-
fied above, although its political impact is entirely different. The claim, which
covers a broad range of sub-positions, that copyright is a fundamental per-
sonal, cultural and/or political right, is generally based on the Kantian concept
of natural rights. Prised apart from the Lockean property rights discourse,
this position has much more going for it in a normative sense. At its most
general, it also seems coherent with Article 15(1)(c) of the UN International
Covenant on Economic, Social and Cultural Rights and with Article 27(2) of
the Universal Declaration on Human Rights, on which the former provision is
based. The idea that a person is entitled to the ‘moral and material’ benefits of
their intellectual creation is intuitively pleasing and, assuming that the moral
interest includes the right to control the use of one’s work, it also chimes nicely
with empirical research demonstrating that it is this aspect of copyright that
lished in id (ed.), Immanuel Kant: Practical Philosophy (Cambridge University Press

1996) 29–35). For convincing critiques of Fichte’s argument, see Barron (n 12) and
Friedemann Kawohl, ‘Commentary on Fichte: Proof of the unlawfulness of reprinting
(1793)’ in Bently and Kretschmer, above, accessed 9 September 2018.
55
Such as the Charter of Fundamental Rights of the European Union, Art. 17(2).
See further Macmillan, ‘Copyright and cultural rights’.
56
Report of the Special Rapporteur in the field of cultural rights, F. Shaheed,
Copyright policy and the right to science and culture, UNGA Doc. A/HRC/28/57, 24
December 2014, paras 26–9.
is particularly important to authors even in the absence of material benefits.57

This strategic position has generated some very interesting work on the nature
of the copyright interest, including Drassinower’s argument that copyright is
essentially a personal right against forced speech.58 And, generally, as already
noted, this justification for copyright argues that its role as a fundamental
cultural and political right turns, or should turn, on its relationship with speech
rights.59 Elements of such an argument can also be found in the report of the
Special Rapporteur in the field of cultural rights.60 Generally, these accounts
advance the importance of a strong public domain or intellectual commons,
which should be defended by copyright law itself. Normatively, the arguments
underpinning this second justificatory discourse have considerable appeal
although the claim61 that they reflect the reality of copyright law is open to
debate.
The borders of the second set of justifications for copyright often seem to
cross over into the territory of the third, which is that copyright is instrumental
to achieving cultural production, innovation and diffusion of cultural works.
This is strange because theoretically the arguments are quite different.62
However, in an intellectual environment that has not always been notable for
the quality of its theoretical engagement, there has been a tendency to roll
these two cautiously pro-copyright positions together. As Waldron notes, this
is a consequence of a type of inductive reasoning that ‘moves from encourage-
ment to incentive to benefit to reward to desert, so that something which starts
off as a matter of desirable social policy ends up entrenched in an image of
moral entitlement’.63 Both these arguments, that copyright is fundamental for,
or instrumental to, cultural production, rely on the same normative assump-
tions that cultural production and circulation are societal goods.64 As a result
57
Ruth Towse, Creativity, Incentive and Reward: An Economic Analysis of
Copyright and Culture in the Information Age (Edward Elgar Publishing 2001), esp.
Chs 6 and 8, in which it is argued that copyright generates little income for most cre-
ative artists, but is nevertheless valuable to creative artists for reasons of status and
control of their work.
58
Drassinower (n 12).
59
See the sources cited in n 12. See also Fisher (n 11) 189–94.
60
Report of the Special Rapporteur (n 56), paras 49–51.
61
See, e.g., Drassinower (n 12) and Fiona Macmillan, ‘Finding the inherent dignity
of copyright: On Drassinower’s what’s wrong with copying?’ (2016) 28(3) Intellectual
Property Journal 289.
62
As is well demonstrated by Drassinower (n 12).
63
Waldron (n 11) 851.
64
There is, even in critical copyright scholarship, little critique of these assump-
tions: see Lawrence Liang, ‘Beyond representation: The figure of the pirate’ in Mario
Biagioli, Peter Jaszi and Martha Woodmansee (eds), Making and Unmaking Intellectual
Property: Creative Production in Legal and Cultural Perspective (University of
of this common concern with creativity, the porous borders between these two
strategic positions have also been used to create compelling arguments about
the importance of balance and the maintenance of the public domain.65 The
incentive argument probably comes closest to reflecting the shape of copyright
law in most common law jurisdictions.66 And it is not irrelevant in the present
context that many of its scholarly advocates have significant concerns about
increasing imbalances in the law’s trajectory. These imbalances have appeared
not only between copyright owners and users of copyright works, but also
between the actual authors of copyright works and those who invest in their
production and distribution. The imbalance between authors and investors is
a consequence of the fact that the grant of copyright is used as an incentive for
both, but that one of these groups is more powerful and much better organized
to influence the development of copyright law.67
The present discussion accepts that copyright’s actual and potential social
value is embedded in the second and third justificatory discourses discussed
above. While the second justificatory discourse elevates copyright to the status
of a fundamental right, its focus on copyright as a speech right allows more
scope to reconcile it with the right to freedom of speech. Both the second
and third justificatory discourses place value on copyright as a stimulus to,
and protection of, cultural production and its diffusion. These types of social
values give us something to go on when it comes to balancing the social value
of free speech against the social value of copyright in circumstances where
a copyright infringer’s right to free speech appears to be in conflict with the
copyright owner’s right to restrict speech. Following this approach, we might
be able to draw some tentative lines in the sand. For example, it might follow
that politically motivated speech infringing copyright in an artistic work might
provide some basis for the relaxation of copyright restrictions on freedom of
speech grounds. Stronger cases, however, might involve politically motivated
speech infringing copyright in informational material of political significance
or in a commercial work. The fate of commercial speech that infringes copy-
right in, for example, an expression of political views could be considered in
Chicago Press 2011) 175–6, citing John H. Mason, The Value of Creativity: The
Origins and Emergence of a Modern Belief (Ashgate 2003).
65
See especially James Boyle, The Public Domain: Enclosing the Commons of the
Mind (Yale University Press 2008).
66
E.g., the English Statute of Anne 1710 describes itself as ‘An Act for the
Encouragement of Learning’ and in the United States the incentive approach is consti-
tutionally mandated: US Constitution, Art. 1, s. 8, which refers to promoting ‘the pro-
gress of science and useful arts’. See also Fisher (n 11) 173–6.
67
Report of the Special Rapporteur (n 56) paras 38–43; Macmillan (n 15); Boyle (n
65) 196–8.
light of the approach of the US Supreme Court in Central Hudson.68 The fact,
in this scenario, that the infringing speech is commercial speech might suggest
a cautious approach to its protection by free speech principles, while the signif-
icance of what is revealed by the infringing speech might justify a relaxation of
the copyright restrictions on free speech grounds.
A further matter that should be mentioned as having the capacity to affect
the question of whether speech infringing copyright is entitled to free speech
protection is the issue of the particular exclusive right comprised in copyright
that is being infringed. In most jurisdictions, and subject to some variations,
copyright restricts not only copying of the protected work, but also the fol-
lowing sorts of things: issuing copies of the work to the public; performing,
showing or playing the work in public; broadcasting the work or including it in
a cable programme services; making it available online; making an adaptation
of the work, or doing any of the foregoing in relation to an adaptation.69 Free
speech considerations seem more obviously relevant to infringements of the
exclusive right of first publication than, for example, to infringement of the
exclusive right to copy the work in situations where it is already readily avail-
able pursuant to the authorization of the copyright owner. Another possible
variant that might be introduced relates to the question of who holds the cop-
yright at the time of the infringement. For instance, perhaps where important
free speech considerations arise, more weight should be given to a copyright
in the hands of the living author of the work. There are two reasons for sug-
gesting this. One is to acknowledge the value of copyright in recognizing and/
or encouraging the creativity of such authors. The other brings us back to the
question of power and the way in which it is exercised by corporate agglomer-
ations, usually so-called media and entertainment corporations.
Where copyright is no longer in the hands of the author of the copyright
work, there is a good chance that, instead, it has become an asset of one of
these global corporations. This widespread phenomenon is a consequence of
both the free transferability of copyright in most jurisdictions and the fact that
the power of these corporations in the market for the distribution of literary
works, music and film puts them in the position of being able to compel the
transfer, or exclusive licensing, of copyright as a condition of distribution. The
often expressed hope that this state of affairs might be remedied by author
distribution over forms of digital social media has largely gone unfulfilled. In
our digitally saturated world what the media and entertainment corporations
offer are resources for promoting works and so making them stand out from
the crowd. The power that a small number of global corporations have as
68
See n 41.
69
Cf, e.g., the UK Copyright, Designs and Patents Act 1988, s. 16.
a result is built upon the copyright edifice, which facilitates the aggregation in
one corporate group of exclusive rights over all sorts of diverse cultural works.
From a free speech point of view this is a two-edged sword. On the one hand,
these corporations might be regarded as enhancing free speech by providing
a system for dissemination of both information and ideas. On the other hand,
their immense social and cultural power to restrict and shape speech, and
to determine what sorts of things we can read, see and hear, should not be
ignored.70 More than this, given the possibilities of disseminating works on
social media, the role of these corporations in facilitating speech is much less
important than their power to control it. Any balance between authors and
publishers that was achieved by means of the transition from the book licens-
ing system operating in Tudor England, which conferred extensive power on
the Company of Stationers (the publishers), has now been eroded.71 We have
turned full circle. This not only suggests that the free speech rights of authors
should prevail against the power of publishers. It also suggests that the ability
of the media and entertainment corporations to enforce copyright in ways that
restrict freedom of speech, understood in terms of its justificatory discourse,
should be constrained. The application of such ideas in defamation law, and
perhaps breach of confidence law, as discussed above, might provide a model
here. Despite the naysayers, law can nearly always find mechanisms to reflect
positions of principle. What is needed first, however, is recognition of the
seriousness of the problem. If we do not recognize it, we shall not find a way
to resolve it. If we do not find a way to resolve it, then we shall have a minimal
ability to speak truth to the extensive power that operates outside the legal
mechanisms for making political power accountable.
70
For elaborations of this argument, see Macmillan (2002) (n 50); Macmillan
(2004) (n 50); Macmillan (2005) (n 37); Macmillan (2006) (n 50); Macmillan (2017) (n
15).
71
See n 19 and nn 35–6.
3. Copyright strengthened by the
Court of Justice interpretation of
Article 17(2) of the EU Charter of
Fundamental Rights
Alain Strowel
1 INTRODUCTION
With the adoption of Article 17, paragraph 2 of the European Union (EU)
Charter of Fundamental Rights (Charter), intellectual property (IP) was for the
first time expressly recognized in a legally binding international instrument
on fundamental rights.1 The Explanations relating to the Charter (hereinafter:
‘Explanations’), which represent a first-hand ‘interpretation tool’, highlight
both the continuity between the protection specifically recognized for intel-
lectual property and the traditional protection of material property as well
as the congruence between the approach of the Charter and of the European
Convention on Human Rights (ECHR) concerning the right to property.
The Explanations present intellectual property as ‘one aspect of the right to
property’. This connection to property is understandable and justifiable, but it
also obscures the links between certain aspects of those IP rights, for example
the moral and personal prerogatives of creators, and the fundamental rights to
the protection of the person and to private life (enshrined in Articles 3 and 7
of the Charter). Similarly the reference to property cuts the close relationships
those rights have with freedom of expression, which includes the freedom
of creation (Article 11 of the Charter), or with the freedom of the arts and
sciences (Article 13 of the Charter). Other aspects of intellectual property
rights – especially of trademark law which appears as an important guarantee
for fair competition and a vector of information for consumers – can be linked
1
However certain intellectual rights have already been recognized in the Universal
Declaration on Human Rights and the International Covenant on Economic, Social and
Cultural Rights (see infra, section 3).
28
Copyright strengthened by CoJ interpretation of Art. 17(2) EU Charter 29
either to freedom of enterprise (Article 16 of the Charter) or to consumer pro-

tection (Article 38 of the Charter).
These freedoms which, alongside the ‘property matrix’, can serve as a foun-
dation for intellectual property rights impose in other circumstances limits
on the exercise or expansion of these IP rights. We shall discuss below some
examples of the balances carried out by the Court of Justice of the European
Union (CJEU) and the European Court of Human Rights, in particular regard-
ing freedom of expression and protection of privacy (see sections 3 and 4).
Other fundamental rights are clearly in tension with the protection of intellec-
tual property. Thus, the right to access health care (contained in Article 35 of
the Charter) will in certain cases be opposed to the protection (and extension)
of patents in the pharmaceutical field. On one hand, the protection of property
(Article 17) – alongside professional freedom (Article 15 of the Charter) and
the freedom to conduct a business (Article 16 of the Charter) – constitute the
foundation ‘of the same fundamental economic right’.2 Indeed companies
often rely on those three rights concomitantly. On the other hand, conflicts
between these economic freedoms may also arise. Indeed, the right to intel-
lectual property claimed by one undertaking in order to control the access to
a market may affect the professional or business freedom of another operator.3
The rights and freedoms enshrined in the Charter reflect the human rights
of the ECHR. In particular, Article 17 of the Charter overlaps with Article 1
of Protocol No. 1 to the ECHR.4 These rights must therefore be interpreted in
the same sense, as required by Article 52(3) of the Charter. The case law of the
European Court of Human Rights (ECtHR) in the field of intellectual property
rights (see section 4) is therefore useful in assessing the extent of the protec-
tion of intellectual property by the Charter. Judges in Strasbourg, like those in
Luxembourg, were led to rule on the balance to be struck between intellectual
property and other freedoms, starting with the freedom of expression. In prac-
tice, the Court of Justice is bolder than the ECtHR as regards the balance to be
achieved between intellectual property rights and other fundamental freedoms
(see section 5): it leaves less room for the national judges to define adequate
2
Eric Carpano, ‘La Charte, une constitution de la liberté économique des entre-
prises?’ (2018) 2 Revue des affaires europeennes 229 which relies on the CJEU Case
C-390/12 Pfleger et al. [2014] ECLI:EU:C:2014:281, paras 57–60.
3
See infra, section 5.2. The Court of Justice had already clearly highlighted these
conflicts by opposing, prior to the adoption of the Charter, the general principle of the
free exercise of an economic or professional activity, attached to the protection of intel-
lectual property rights (CJEU, Case C-200/96 Metronome Musik [1998] ECLI:EU:C:
1998:172, para 26).
4
The freedom of the arts and sciences as well as the freedom of enterprise, both
of which play a role in founding intellectual rights, are not expressly mentioned in the
ECHR, but rather in the Charter (Arts 13 and 16).
balancing.5 Before analysing these precedents, the scope of Article 17, para-
graph 2 must be highlighted (see section 2) and the link of this provision with
other international instruments on human rights must be clarified (see section
3).
2 SCOPE: DELIMITATION OF INTELLECTUAL

PROPERTY
According to the Explanations, the ‘growing importance’ of intellectual

property justifies its independent and explicit recognition in paragraph 2 of
Article 17 of the Charter. The Explanations seem to refer here to the growing
economic role of intellectual property, which has the effect of classifying this
fundamental right among other economic rights. Moreover, these Explanations
state that ‘[t]he guarantees provided for in paragraph 1 apply as appropriate to
intellectual property’.
Like other fundamental rights of the Charter, the protection of IP rights
is geared towards the institutions, bodies, offices and agencies of the EU as
well as to the Member States ‘when they implement the law of the Union’.
The reference to, and reliance on, the fundamental right of IP greatly influ-
ences national court decisions pertaining to the exercise of IP rights, because
many instruments of European law are interpreted and applied by national
administrative or judicial authorities. The number of instruments of secondary
European intellectual property law has in fact increased significantly over
the recent decades.6 The limitation imposed by Article 51 of the Charter,
limiting its application to EU bodies and to Member States only when they are
implementing EU law, is therefore marginal in the IP field.7 In addition, the
case law of the Court of Justice concerning intellectual property rights is very
extensive,8 further amplifying the relevance of European law in intellectual
property disputes.
5
Alain Strowel, ‘Pondération entre liberté d’expression et droit d’auteur sur
Internet: de la réserve des juges de Strasbourg à une concordance pratique par les juges
de Luxembourg’ (2014) Revue trimestrielle des droits de l’homme 889.
6
See Sir Richard Arnold, ‘An overview of European harmonization measures in
intellectual property law’ in Ansgar Ohly and Justine Pila (eds), The Europeanization
of Intellectual Property Law: Towards a European Legal Methodology (Oxford
University Press 2013) 25.
7
Paul Torremans, ‘Article 17(2)’ in Steve Peers, Tamara Hervey, Jeff Kenner and
Angela Ward (eds), The EU Charter of Fundamental Rights (Hart Publishing 2014)
491.
8
According to the activity reports of the Registry of the Court of Justice, intel-
lectual property belongs to the areas of European law which generate most decisions
(often intellectual property comes first out of the 34 branches of law distinguished by
Intellectual property rights harmonized, unified or created by directives and

regulations include, at the very least, patent right, supplementary protection
certificates (SPCs), trademark rights, copyrights, the neighbouring rights of
performers, producers and broadcasting organizations, the rights of makers
of databases, designs and models, designations of origin, plant varieties,
rights in semiconductor topographies and trade names.9 However, there is
no commonly accepted definition of the term ‘intellectual property’. Certain
international instruments such as the Agreement on Trade-Related Aspects of
Intellectual Property Rights, concluded on 15 April 1994 under the framework
establishing the World Trade Organization (WTO), or the Paris Convention
for the Protection of Industrial Property of 20 March 1883 include not only
protection of business secrets10 but also protection against unfair competition.
It is not certain that these two last protections are covered by Article 17, par-
agraph 2 of the Charter. On the other hand, intangible assets not recognized
by the European legislator but protected by contractual arrangements can
claim the protection of Article 17, paragraph 2 of the Charter because of their
property-like nature (see section 3).
the report of the Registry, as having most decisions). On the evolution of the number
of cases on intellectual property brought before the General Court (ex Court of First
Instance) and the Court of Justice between 1999 and 2015, see Vincent Cassiers and
Alain Strowel, ‘Intellectual property law made by the Court of Justice of the European
Union’ in Christophe Geiger, Craig A. Nard and Xavier Seuba (eds), Intellectual
Property and the Judiciary (Edward Elgar Publishing 2018) 175. The numbers are as
follows (for the later years, the number in parentheses indicates whether intellectual
property appears first, second or third in terms of the number of decisions):
99 00 01 02 03 04 05 06 07 08
CFI-GC 18 34 37 83 100 110 98 143 168 198
ECJ 2 6 15 8 9 8 24 23 28 36
09 10 11 12 13 14 15 16 17 18
CFI-GC 207 207 219 238 294 295 303 288 (1) 376 (1) 349 (1)
ECJ 39 49 58 59 62 47 88 80 (1) 60 (3) 74 (2)
See also the analysis by Alain Strowel and Hee-Eun Kim, ‘The balancing impact of
general EU law on European intellectual property jurisprudence’ in Ohly and Pila (n
6) 121.
9
This non-exhaustive list corresponds to that of the Commission Declaration con-
cerning Article 2 of Directive 2004/48/EC on the enforcement of intellectual property
rights ([2005] OJ L94/37).
10
Now harmonized within the European framework by Directive 2016/943/EU of
8 June 2016 on the protection of undisclosed know-how and commercial information
(business secrets) against their unlawful acquisition, use and disclosure.
The existence of an arsenal of sometimes very precise secondary law

provisions does not prevent the courts from referring to intellectual property
protection, from applying the type of reasoning based on the principle of
proportionality and from reaching balances between competing rights, in an
approach that is characteristic of constitutional law and of the law of funda-
mental freedoms.11 For example, the delimitation by the EU legislator of the
exceptions to copyright in matters of quotation or parody12 does not preclude
carrying out additional balancing based on the fundamental protections of IP,
on the one side, and freedom of expression, on the other side.13 Accordingly,
the question of the responsibility or liability of intermediaries in promoting the
circulation of information and works on the internet has been partly resolved
through a balance between the protection of intellectual property and that of
other freedoms. On this issue in particular, the Court of Justice has shown its
inclination to seek a ‘fair balance’ between fundamental freedoms despite
the extensive framing of the issues by secondary EU provisions pertaining to
private law14 (see section 5). In the field of trademarks too, the determination
of infringement beyond the cases of confusion for the average consumer
requires determining whether the use takes ‘undue advantage’ of the distinc-
tive character or the reputation of the brand and is carried out ‘without just
cause’.15 Undue or unfair use and absence of just cause can be assessed in
light of the distinctions made to conceptualize the limitations to freedom of
expression. Thus, parodic uses of brands by non-governmental organizations
(NGOs) and activists in the context of political and social criticism should be
more easily accepted than between competitors, given the different weighting
given by European case law to discourse on questions of general interest and
to commercial speech. On the other hand, in many other fields of intellectual
property, especially patent law, the balancing between fundamental rights
11
See the analysis followed here by Ansgar Ohly, ‘European fundamental rights
and intellectual property’ in Ohly and Pila (n 6) 156–9. This is no doubt partly
explained by the careers and specialization in public law of many judges at the CJEU.
12
Art. 5(3)(d) and (k) of Directive 2001/29 on copyright and related rights in the
information society.
13
Regarding parody, see CJEU, Case C-201/13 Johan Deckmyn and Vrijheidsfonds
VZW v Helena Vandersteen and Others [2014] ECLI:EU:C:2014:2132 (the judgment
invokes the prohibition of discrimination based on race and ethnic origin enshrined in
Art. 21(1) of the Charter to limit the the freedom of parody, which is itself enshrined in
the copyright exception of Art. 5(3)(k) of Directive 2001/29 on copyright and related
rights in the information society).
14
Arts 12 to 15 of Directive 2000/31/EC of 8 June 2000 on electronic commerce.
15
Art. 9(1)(c) of Regulation (EU) 2017/1001 of 14 June 2017 on the EU trademark
and Art. 10(2)(c) of Directive (EU) 2015/2436 of 16 December 2015, approximating
the laws of the Member States relating to trademarks.
plays a much more limited role because the legislative provisions tend to use
formulations which appear less broad and flexible.16
3 RELATIONSHIP WITH OTHER

INTERNATIONAL INSTRUMENTS AND
FUNDAMENTAL RIGHTS
In recent decades, intellectual property rights have gradually become associ-

ated with, and even considered as, fundamental rights.17 This is particularly
true with copyright, a term which will be used here to refer to the institutions
designed to protect authors and works, whether in the common law or in the
continental civil law tradition (in Continental European systems, the equiva-
lent legal institution is given the name of ‘author’s right’ in various languages:
‘droit d’auteur’, ‘diritto d’autore’, ‘Urheberrecht’, etc.). This consecration has
partly resulted from the inclusion of copyright in the Universal Declaration
of Human Rights. Its Article 27, paragraph 2 states: ‘Everyone has the right
to the protection of moral and material interests resulting from any scientific
production, literary or artistic, of which he is the author’. René Cassin, one
of the architects of the human rights system at the end of the Second World
War, claimed that the capacity for creation is a fundamental trait of all humans
and therefore deserves to be recognized and protected.18 However, such
protection appears to operate in tension with the right to culture (or the right
to scientific progress) recognized in the first paragraph of Article 27 of the
Declaration: ‘Everyone has the right to freely participate in the cultural life of
the community, to enjoy the arts and participate in scientific progress and the
resulting benefits’. The same tension appears between access to culture and the
protection of works in Article 15 of the International Covenant on Economic,
16
In patent law, the exclusion of certain inventions from the field of patentabil-
ity for contrariety to ‘ordre public or morality’ (Art. 53 of the the European Patent
Convention) nevertheless offers the possibility of contesting certain patents in the light
of fundamental rights. In a Grand Chamber judgment on the patentability of stem cells
from human embryos (CJEU, Case C-34/10 Oliver Brüstle v Greenpeace [2011] ECLI:
EU:C:2011:669, para 34), the Court of Justice invoked the fundamental right to dignity
to propose a broad interpretation of the restrictions contained in Directive 98/44/EC on
the protection of biotechnological inventions, but did not take into account other com-
peting rights such as the right to scientific development or to health (Arts 13 and 35
Charter).
17
Claude Colombet, Grands principes du droit d’auteur et des droits voisins dans
le monde (Litec, UNESCO 1990).
18
René Cassin, ‘L’intégration, parmi les droits fondamentaux de l’homme, des
droits des créateurs des œuvres de l’esprit’ in Mélanges Marcel Plaisant: Studies on
Industrial, Literary and Artistic Property (Sirey 1959) 229.
Social and Cultural Rights, which has a binding value for the states which have
ratified it.19
In the European Union, copyright, as an intellectual property right falling
under Article 17(2) of the Charter, is viewed through the prism of property.
Indeed, the first paragraph of Article 17 protects ‘the right to own, use, dispose
of … his or her lawfully acquired possessions’ and defines the conditions
for the taking of property. The property-focused approach of the Charter
diverges from the view adopted in international instruments. Article 17(2) of
the Charter does not mention the protection of the author’s ‘moral interests’
(mentioned in the Universal Declaration; see supra),20 which are reflected
in the moral rights, such as the rights of attribution and of integrity of the
work. Under the property perspective legal persons are more easily qualified
to invoke the copyright/property protection, the sole requirement being that
the author’s right has been assigned to them. In practice, as with other funda-
mental rights with an economic significance, legal persons more often than
individuals claim the fundamental protection of intellectual property before the
courts, in particular before the Court of Justice and the General Court of the
European Union.21 Because of this, the consideration of this right as property
wipes out the link between copyright protection and the natural person of the
author,22 which is regarded as the only possible source of creativity. Stressing
the property dimension might as well put corporate interests at the centre of
other IP rights, such as patents, reducing at the same time the role of the human
inventor within patent law.
By promoting intellectual property as fundamental right, the Charter also
obliterates the relationship that copyright entertains with the cultural sector
19
Article 15:
The States Parties to the present Covenant recognize the right of everyone: (a) To
take part in cultural life; (b) To enjoy the benefits of scientific progress and
its applications; (c) To benefit from the protection of the moral and material
interests resulting from any scientific, literary or artistic production of which
he is the author.
The steps to be taken by the States Parties to the present Covenant to achieve the
full realization of this right shall include those necessary for the conserva-
tion, the development and the diffusion of science and culture.
20
It is true that Art. 17(2) of the Charter covers all intellectual rights, including
those which, unlike copyright, have almost exclusively an economic and commercial
dimension (trademark, patent, etc.).
21
A study has thus pointed out that out of 650 cases (over the years 2013–2018) of
the Court of Justice and the General Court, involving a question of application or inter-
pretation of the Charter, almost two-thirds concerned legal persons claiming a breach
of their fundamental rights (Carpano (n 2) 227).
22
Contra the recognition of this right in the Declaration and the Covenant (see
supra).
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Copyright And Fundamental Rights In

The Digital Age: A Comparative

The Internet And Constitutional Law The Protection Of

Judicial Protection of Fundamental Rights on the

Human Rights Protection by the ECtHR and the ECJ A

Privacy Rights in the Digital Age, 2nd Edition Grey

Historic Newspapers in the Digital Age Search All About

The Home in the Digital Age 1st Edition Antonio

Leadership Resilience in a Digital Age 1st Edition

The Psychology of Consumer Profiling in a Digital Age

Cheltenham, UK • Northampton, MA, USA

All rights reserved. No part of this publication may be reproduced, stored in a

Edward Elgar Publishing, Inc.

A catalogue record for this book

Library of Congress Control Number: 2020944305

This book is available electronically in the

ISBN 978 1 78811 387 8 (cased)

List of contributors vii

2 ‘Speaking truth to power’: copyright and the control of speech 6

3 Copyright strengthened by the Court of Justice

4 Regulating with rights proportionality? Copyright,

5 Copyright and fundamental rights in European Court of

6 Cultural rights, cultural diversity and the EU’s copyright

7 The influence of the Court of Justice of the European

8 US and EU: diverging or intertwined paths? 188

9 From private enforcement to public enforcement.

Marco Bassini is a Postdoctoral Researcher in Constitutional Law at Bocconi

revision of the E-Commerce Directive, he has been an Academic Visitor

The chapter authored by Tuomas Mylly is then specifically devoted to

impact in relation to copyright than in relation to other areas of so-called

Investigating the proposition that copyright should be understood as

2 THE VALUE OF FREE SPEECH

2.1 Justifying Free Speech

When we talk about freedom of speech, we are never talking in terms of

Globalization and Developing Countries (Edward Elgar Publishing 2010); Fiona

ical justifications of the free speech principle in order to reflect on a limited

2.1.1 Speech and truth

revelatory effect on truth.21 Are we concerned here with statements of (alleged)

2.1.2 Speech and human rights

2.1.3 Speech and democracy

opinion. If freedom of speech is essential to securing a fully informed citizenry

2.2 Significance of the Public/Private Distinction

In attempting to formulate a freedom of speech theory that is broad enough

3 APPLYING THE FREE SPEECH PRINCIPLE TO

its typology according to freedom of speech principles. As Goldstein, who was

of the expression said to infringe copyright.51 In other words, if the infringing

from human rights instruments, notably Article 15(1)(c) of the International

lished in id (ed.), Immanuel Kant: Practical Philosophy (Cambridge University Press

is particularly important to authors even in the absence of material benefits.57

either to freedom of enterprise (Article 16 of the Charter) or to consumer pro-

2 SCOPE: DELIMITATION OF INTELLECTUAL

According to the Explanations, the ‘growing importance’ of intellectual

Intellectual property rights harmonized, unified or created by directives and

The existence of an arsenal of sometimes very precise secondary law

3 RELATIONSHIP WITH OTHER

In recent decades, intellectual property rights have gradually become associ-

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