Part 4: Freedom of speech

There was a short final discussion about the relationship between any copyright intervention, and freedom of speech law.

The relationship between copyright and free speech law

It was described how from some perspectives and in some jurisdictions, freedom of speech law has not been seen as a viable route by which copyright can be challenged. This is because of the view that certain provisions of copyright law sufficiently protect freedom of speech. These protections have been said to include the existence of doctrines such as the idea/expression dichotomy, and the application of copyright exceptions.

Application to the ECHR and CJEU

However, some recent case law in Europe challenges this view. Recent European Court of Human Rights cases have shown that the court will subject copyright to a free speech review. Furthermore, there appears to be an increasing possibility that at the CJEU, copyright law would be interpreted so as to comply with free speech concerns.

Hence it was argued that any extension of copyright, or application of it, to benefit press publishers in Europe should pay regard to freedom of speech law. However, it is not clear how the arguments would play out. Moreover, the way the free speech guarantee in the EU Charter will affect the decisions of the CJEU remains unclear, as it is relatively new law for that tribunal.

In broad brush terms, it was argued that the most important aspect of freedom of speech law engaged is likely to be the interests of the audience to receive information. From this perspective, copyright interventions may both be assailed and defended. On the one hand, it could be argued that the curtailment of the free flow of information that may be a result of a copyright related intervention would tend – all other things considered – potentially to infringe free speech. Consideration would then have to be given to the proportionality of such an act.

However, on the other hand, copyright interventions could also be defended on the grounds that they help ensure that commercial news publishers continue to be viable, and so in the end contribute to the free flowing of information in a democracy.

It is not clear how the courts would resolve this. Much will depend on the exact wording an application of any particular copyright intervention.