Who wins when copyright and free speech clash?

Who wins when copyright
and free speech clash?
Graham Smith
@cyberleagle
ORGCon 2013
London, 8 June 2013

Outline
● Freedom of expression as law
● Copyright and freedom of expression
● 10 intersections
• Digital and online copyright
Copyright and free speech | ORGCon 2013© Bird & Bird LLP 2013

Free speech as an ideal
If liberty means anything at all, it means
the right to tell people what they do not
want to hear.
― George Orwell
I disapprove of what you say, but I will
defend to the death your right to say it.
― Evelyn Beatrice Hall, The Friends of
Voltaire
Because if you don't stand up for the stuff
you don't like, when they come for the stuff
you do like, you've already lost.
― Neil Gaiman
Give me the liberty to know, to utter, and
to argue freely according to
conscience, above all liberties.
― John Milton, Areopagitica
We can never be sure that the opinion we
are endeavoring to stifle is a false opinion;
and if we were sure, stifling it would be an
evil still.
– John Stuart Mill, On Liberty, 1859
A free press can be good or bad, but, most
certainly, without freedom a press will
never be anything but bad.
– Albert Camus
If all mankind minus one were of one
opinion, mankind would be no more
justified in silencing that one person than
he, if he had the power, would be justified
in silencing mankind.
– John Stuart Mill, On Liberty, 1859
If we don't believe in freedom of
expression for people we despise, we don't
believe in it at all.
– Noam Chomsky

1948
Amendment I
Freedoms, Petitions, Assembly
Congress shall make no law …
abridging the freedom of speech, or of the press,…
1789


What do they say about free speech?

"But a freedom which is restricted to what judges think to be responsible or
in the public interest is no freedom.
Freedom means the right to publish things which government and
judges, however well motivated, think should not be published. It means the
right to say things which "right-thinking people" regard as
dangerous or irresponsible.
This freedom is subject only to clearly defined exceptions laid down by
common law or statute." Hoffmann L.J., R. v Central Independent Television
Plc. Court of Appeal 9 February 1994

How do fundamental rights bite?
Effect in court – external corrective
● Interpret legislation
● Develop common law
● Influence judicial discretion – "may"
• Remedies
● Declaration of incompatibility (UK HRA)
● Override and invalidate – "trump"

Rules of engagement (Europe)
● Is freedom of expression engaged?
● Is the interference prescribed by law?
● Is it necessary in a democratic society for a legitimate purpose?
● Is it proportionate?
● Balancing with other fundamental rights and legitimate
interests
• Validity of rule
• Impact in individual case

And when copyright meets free speech?

"Copyright does not lie on the same continuum as, nor is
it the antithesis of, freedom of expression."
Mance L.J. Hyde Park v Yelland2000
Copyright law contains built-in First
Amendment accommodations (idea/expression dichotomy
and fair use)
Sup. Ct. Harper & Row v Nation Enterprises
1985
"Copyright laws are not restrictions on freedom of speech
as copyright protects only form of expression and not the
ideas expressed"
Sup. Ct. Brennan J. N.Y. Times v United States
1971
Copyright v free speech

Copyright v free speech
Page 15
"Thus copyright is antithetical to freedom of expression. It
prevents all, save the owner of the copyright, from
expressing information in the form of the literary work
protected by the copyright."
Court of Appeal (Lord Phillips) Ashdown v Telegraph Group Ltd
2001
"… nothing whatsoever … to suggest that [intellectual
property] is inviolable and must for that reason be
absolutely protected. … must be balanced against the
protection of other fundamental rights. " CJEU, SABAM v
Scarlet
2011
Publication of photographs on a fashion website was
exercise of freedom of expression and conviction for
copyright infringement interfered with that. ECt HR , Donald
Ashby.
2013

How does copyright engage free speech?

Ten axes of intersection
EXPRESSION TO
IDEAS
EXPRESSION TO
OPINION
ORIGINALITY TO
FACTS
DISSEMINATION TO
REFERENCE
ZERO TO PERPETUITY
SUPPLIERS TO USERS
PARTICIPATION TO
FACILITATION
COPYING TO
COMMUNICATING
PENNIES TO PRISON
TARGETED TO
SCATTERGUN
SCOPE
WHO
DOING
WHAT?
REMEDIES

1.
Idea/expression dichotomy
● WIPO Copyright Treaty 1996:
• “Copyright protection extends to expressions and not to
ideas, procedures, methods of operation or mathematical
concepts as such.”
● Written into US copyright law:
• “In no case does copyright protection for an original work of
authorship extend to any idea … concept, principle… ” (S102(b))
● Not written in to UK Copyright Act – question of degree
● Written into some EU law e.g. Software Directive
Expression Ideas

1.
Idea/expression dichotomy
● Relationship to freedom of expression
• Chilling effect of preventing the copying of ideas
• “ … copyright law contains built-in First Amendment
accommodations. … First, it distinguishes between ideas
and expression and makes only the latter eligible for
copyright protection.” U.S. Sup. Ct. Eldred v Ashcroft
Expression Ideas

2.
Opinion ranks high in hierarchy of protected speech
● Significant potential for copyright to interfere
• How can you criticise without quoting?
● Copyright makes exceptions for opinion
• Fair use (USA)
• Fair dealing for the purpose of criticism or review of
published works (UK)
- cf EU Copyright Directive
• Parody?
Expression Opinion

2.
EU copyright exceptions not always enough
● Backstop - fundamental right of free speech
● Unsuccessful
• Ashdown v Telegraph (public interest defence) (UK 2001)
● Successful
• Germania 3 (play commenting on Brecht’s politics in 1950s)
(DE Federal Constitutional Court 2000)
• Medienprofessor (engagement in public debate – response
to newspaper criticism) 4 Ob 140 01 (AT Supreme Court, 12
June 2001).
• Scientology v XS4ALL (public criticism) (NL Hague CA
2003)
Expression Opinion

Nadia Plesner – Darfurnica/Simple Living
Exhibition T-shirts, posters, website (profits to charity)
The Hague District Court, May 2011 – preliminary judgment
● “… the interest of Plesner to (continue to) be able to
express her (artistic) opinion through the work "Simple
Living" should outweigh the interest of Louis Vuitton in
the peaceful enjoyment of its possession [exclusive rights
to the use of the design].”
● “the illustration is to be regarded as a lawful statement
of the (artistic) opinion of Plesner … The order …
will therefore be quashed in its entirety.”
Page 22

3.
● “[1st Amendment accommodation by] … permitting free
communication of facts while still protecting an author’s
expression.” (U.S. Sup. Ct. Eldred v Ashcroft)
● Freedom of expression engagement
• Low originality threshold can impact ability to
recommunicate facts imparted via copyright work
- Database right…
● Mitigated by exceptions from copyright
• UK: Fair dealing for purpose of reporting current events (not
photographs)
Originality Facts

3.
● Backstop - fundamental right of free speech
• HFA v FIFA (photomontage picture of FIFA World Cup
“inseparable from the act of informing the public on the
course of this major news event”) (FR C de C 2007)
Originality Facts

4.
● Prevention of dissemination of infringing copies
● Referring to existence/location of infringing copies
• Access to information and knowledge
● Web linking
• “The first amendment to the Constitution of the United States …
addresses the right to speak. The right to make reference to
something is inherent in that right. On the web, to make
reference without making a link is possible but ineffective - like
speaking but with a paper bag over your head.” (Tim Berners-
Lee)
• Universal v Reimerdes (Nov 2001 2nd Cir. Ct. App.) (DECSS)
- US 1st Amendment arguments rejected (functional v speech
elements)
Dissemination Reference

5.
● Copyright term
• Orphan works?
● Two unsuccessful attempts to challenge term extensions in USA
• Eldred v Ashcroft
• Golan v Holder
● 1st Amendment arguments unsuccessful
Zero Perpetuity

6.
Who infringes?
● Background
• Pre-digital copyright
- Plagiarists, manufacturers and distributors
- Head of the chain (strict liability)
- Middlemen (with knowledge)
- Not purchasers, borrowers, readers, viewers
• Post-digital extended reach - users
- Accidental result of digital revolution
• Chilling effect of imposing liability on users
• Pending EU Court of Justice Meltwater referral
Suppliers Users

7.
Degree of involvement?
● Volitional act; causing infringing act
● Facilitate, enable?
● Accessory liability for acts of others
• The more tenuous the involvement:
- Collateral damage to legitimate activities
- Impact on online intermediaries
- Engines of free flow of information
• Deterrence of legitimate activities (chilling effect)
• Incentivising over-removal (notice and takedown)
Participation Facilitation

8.
Acts restricted by copyright
● Copying
● Communication (including making available) to the public
• Inherent engagement with freedom of expression
- Cf Donald Ashby
• Web linking
- Newzbin2 and others
- Pending EU Court of Justice linking/framing references
- Svensson (unauthorised links to genuine site)
- Die Realitat (unauthorised links to infringing material)
Copying Communicating

9.
Remedies for infringement
● Criminal v civil
• Liability triggers
● For criminal
• Imprisonment versus fines
● For civil
• Compensatory v aggravated, punitive, exemplary damages
• Compensatory v statutory damages
• Damages v injunctions against future dissemination
• Penalties for breach of injunctions
Pennies Prison

9.
Sanctions for online infringement
● Simplified – not legal advice!!
Pennies Prison
UK Download Browse
View stream
Upload
Supplier User Supplier User User
Civil (strict
liability)
Criminal
(actual or
deemed
knowledge)
No (non-
commercial)
No (non-
commercial)

10.
● Focus of remedies
• Targeted on infringing material
• Potential to affect non-infringing material
● Engagement with freedom of expression
• Interference with right to receive or impart legitimate information
- Suspend/terminate internet access
- Filtering injunctions against intermediaries
- “that injunction could potentially undermine freedom of
information since that system might not distinguish
adequately between unlawful content and lawful
content, with the result that its introduction could lead
to the blocking of lawful communications.” SABAM v
Scarlet (CJEU)
- Site blocking injunctions
Targeted Scattergun

Copyright v free speech - Who wins?
● No contest
● Contest opens
• Occasional wins for free speech in national courts in Europe
● Recognition at pan-European court level
• SABAM v Scarlet (CJEU: free speech prevailed)
• Donald Ashby (ECtHR: copyright prevailed)
Page 33
< 2000
2000 >
2010 >

Graham Smith
graham.smith@twobirds.com
@cyberleagle
Blog: www.cyberleagle.com
Bird & Bird is an international legal practice comprising Bird & Bird LLP and its affiliated and associated businesses.
Bird & Bird LLP is a limited liability partnership, registered in England and Wales with registered number OC340318 and is authorised and regulated by the
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