The Freedom of Expression Contours of Copyright in the Digital Era: A European Perspective

Abstract

This paper analyses the influence of the right to freedom of expression and information on European copyright law in the digital context. Drawing on the practice of the two major European courts—the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU)—it begins by exploring how this fundamental right shapes both the scope of copyright protection in Europe and what is traditionally termed as “exceptions and limitations” to exclusive rights. Specifically, a long‐standing practice of the ECtHR, in accordance with which copyright in turn may be viewed as an exception to freedom of expression and must hence be narrowly interpreted, is scrutinized. On a related note, a recent recourse by the CJEU to the language of “users' rights” is examined, inasmuch as it allows for a reconceptualization—in a normative framework of freedom of information—of copyright “exceptions” not as the exceptions as such, but as the equal rights of users of protected subject‐matter. In this regard, the locus standi of “mere users” of online content and the somewhat diverging approaches of the Strasbourg and Luxemburg courts toward granting thereof are addressed. The paper then turns to discuss the recent recourse by the European courts to freedom of expression as a means to define the role of internet service providers in digital copyright enforcement, implicating issues ranging from the providers' liability in respect of the third‐party content posted online to the often far‐reaching injunctions imposed on non‐liable intermediaries. Several conclusions are drawn from the above analysis, reflecting on the potential of freedom of expression and information to inform the development of European standards applicable in the field of digital copyright.

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