The beginning of a (happy?) relationship - Copyright and Freedom of Expression in Europe

“Intellectual property shall be protected.” It is with these words that Art 17(2) of the Charter of Fundamental Rights of the European Union elevates copyright to spheres where it hovers with other fundamental rights, amongst them the Freedom of expression. The relation between both, copyright and the freedom of expression is a difficult one, in which an exclusive right, which enables its right holder to exclude others from using his work meets and potentially collides with a right fundamental for our democratic society. This relationship has only recently been addressed in two cases, one in front of the European Court of Human rights (Ashby Donald v France) and one is pending in front of the Court of Justice of the European Union (Deckmyn v Vandersteen). The paper seeks to explore the relationship between both fundamental rights by analysing, first, the direction both European courts have taken with a view to positioning and balancing the interests under both rights; regard will be had to the emerging case-law on the relation between the EU Charter and the application an implementation of EU law. Second, in a practical application of the balancing act, relevant limitations and exceptions to copyright under Art 5 of the Information Society Directive will be scrutinized under the principles developed by Advocate-General Cruz Villalón in his opinion in the Deckmyn case.
Special regard will be had throughout the paper to Freedom of Speech in a digital environment and its impact on the balance between copyright and the freedom of expression (and how this might differ to the realation between freedom of expression and copyright in the ‘real’ world). In this context the enabling and disabling functions of copyright and related rights against the background of the ‘ubiquity’ of copyright on the internet are discussed.