A Legal Test for Resolution of Conflicts Between Human Rights and Copyright

Telif Hakları ve İnsan Hakları Arasındaki Çatışmaların Çözümüne İlişkin Hukukî Bir Çözüm Yolu

Hasan Kadir YILMAZTEKİN

Courts, human rights bodies, legal scholars and human rights advocates have discussed the interface between human rights and copyright through multiple lenses. Some commentators claim that intellectual property rights are a genre of human rights. Some others have provided frameworks for approaching the protection of copyright under the umbrella of human rights. Their different approaches examine the many circumstances in which copyright and human rights can conflict yet coexist, and show which resolutions should be embraced when conflicts arise. This article aims to introduce a legal test (deconstructive multiple proportionally test) for courts to resolve a conflict of norms between human rights and copyright, when such a conflict is encountered. It further shows how to apply this test through a case study, which involves German implementation of notice-and-stay-down measures in YouTube cases.

Copyright, Human Rights, Online Intermediaries, ECtHR, CJEU.

Mahkemeler, insan hakları kuruluşları, hukukçular ve insan hakları savunucular, telif hakları ile insan hakları arasındaki ilişkiyi değişik bakış açılarıyla incelemektedirler. Bazı düşünürler, fikri mülkiyet haklarının insan haklarının bir türü olduğunu iddia etmektedir. Diğer bazıları, telif haklarının insan hakları şemsiyesi altında nasıl korunabileceğine dair yaklaşımları sunmaktadır. Onların bu farklı yaklaşımları, telif hakları ile insan haklarının ne şekilde çatışabileceğini ve birlikte var olabilecekleri halleri incelemekte ve çatıştıklarında hangi çözümlerin benimseneceğini göstermektedir. Bu makale, telif hakları ile insan hakların normları arasında bir çatışma çıktığında, mahkemeler için bunun çözümüne ilişkin hukukî bir çözüm yolu tanıtmayı amaçlamaktadır. Bu makale, bu testin nasıl uygulanacağını Almanya’daki uyar-kaldırmaya-devam-et teknolojik tedbirlerini konu alan YouTube davalarını içeren bir vaka analizi üzerinde göstermektedir.

Telif Hakları, İnsan Hakları, Online Aracılar, AİHM, ABAD.

1. Introduction

In their traditional conception, human rights function as, to use Ronald Dworkin’s metaphor, ‘trumps’:¹ even though most human rights are not absolute, they have priority over other claims.² Yet in cases of a conflict between human rights, the ‘trump’³ aspect not always works.⁴ Although the issue of conflicts between fundamental rights is not new, it has prompted renewed interest in recent years, particularly due to the proliferation in the number of such conflicts that have been referred to national, European and international judges. Several reasons have been advanced to explain this increase.⁵ One reason is the continuous expansion of the ‘list’ of fundamental rights that are guaranteed in international and/or constitutional law. The catalogue of legally protected fundamental rights has grown constantly, not just as a result of adopting new provisions, but more especially through the extensive interpretation of existing texts.⁶ In current human rights theory and practice, public authorities are not simply required to respect fundamental rights by abstaining from acts that violate these rights; they are also required to protect fundamental rights in relationships between private individuals.⁷ This positive obligation to provide protection presupposes an obligation to fulfil human rights by the adoption of legislative, administrative, judicial and substantive measures and to protect individuals against the violation of their fundamental rights by other individuals.⁸ The wider recognition of the horizontal effect of human rights, that is to say, their application to relationships between private persons (whether individuals, groups, organisations or corporations) and not just solely between the state and its citizens, has also caused the number of conflicts to multiply.⁹ This leads necessarily to an increase in the number of actions founded on the violation of individual freedoms and as a result, to an escalation in the number of conflicts between fundamental rights.

Thus, both legislators and judges have regularly encountered the task of solving a conflict between fundamental rights. Different concerns occur when parties to a horizontal conflict invoke a human right to protect their interests. In such circumstances, where two fundamental rights conflict with one another, the principle of the indivisibility of human rights requires that both rights carry equal weight.¹⁰ Technically, judges and legislators do not deal with conflicting rights issues in the same manner. A legislator can develop a fairly nuanced system in which both conflicting rights enjoy maximum protection, even though in some situations it might give priority to one right over another.

Judges, on the other hand, must normally rule in favour of one party only, even though compromise solutions may occasionally be found. When studying the case law with respect to conflicting human rights, it is important to bear in mind that there are two different traditions in addressing the conflicts between human rights: balancing and proportionality.¹¹ Although they have been used interchangeably in the literature and in practice,¹² they are, notwithstanding similarities, historically, ideologically and analytically distinct concepts.¹³ For instance, proportionality was originally developed in German administrative law, and was related only peripherally to private law, while balancing arose in private law and was only later extended to public law in the US. Additionally, proportionality was devised as part of an attempt to protect individual rights against a background of little textual support for such protection, whereas balancing was designed for the exact opposite purpose - to control the overambitious libertarian protection of rights by the US Supreme Court grounded on a highly literal reading of the constitutional text. Finally, proportionality was developed in the course of the formalistic and doctrinal jurisprudence of the German administrative courts and was not part of an antiformalistic legal philosophy, while balancing was part of the antiformalist revolution of the US progressives.¹⁴

How can it be possible to devise a legal test that might be used when a court comes across two competing human rights, one of which provides protection for copyright? Yet what does the concepts of ‘balancing’ and ‘proportionality’ really mean?

Academics like Laurence Helfer,¹⁵ Christophe Geiger,¹⁶ Peter Yu,¹⁷ Lea Shaver,¹⁸ Abbe Brown¹⁹ and Gabriele Spina Alì²⁰ have provided frameworks for approaching the protection of intellectual property issues under the umbrella of human rights. Their different approaches examine the many circumstances in which intellectual property rights and human rights can conflict yet coexist, and which resolutions should be embraced when conflicts arise.

By blending Abbe Brown’s legal test from her book ‘Intellectual Property, Human Rights and Competition: Access to Essential Innovation and Technology’,²¹ this article aims to introduce a legal test for courts to resolve a conflict of norms between human rights and copyright, when such a conflict is encountered. Building on previous research on resolution models of conflicts between human rights,²² it begins with portraying the implementation of proportionality and balancing test by the European Court of Human Rights (‘ECtHR’) and the Court of Justice of European Union (‘CJEU’) (Section II). Then, it continues with the discussion of limits of the legal reasoning of courts in such cases (Section III). Later, it explores the comprehensive and well-structured test proposed by Brown to resolve the conflicts between intellectual property rights and (other) human rights (Section IV). To address these issues in a more elaborate manner through building on Brown’s test, it later presents a theoretical model that could be a useful and systematic tool for the development of transparent and coherent reasoning in these cases (Section V). The model presented in this article was initially discussed by Donna J. Sullivan,²³ later elaborated by Eva Brems,²⁴ and was finally implemented in relation to conflicts between freedom of expression and the right to reputation by Stijn Smet.²⁵ This model is influenced in particular by the German Constitutional Court’s (Bundesverfassungsgericht) method called ‘praktische Konkordanz’ - implying a compromise with minimal restrictions of both rights,²⁶ slightly adapted and blended with Brown’s test. The model developed in this article is called ‘deconstructive multiple proportionally test’, which inspired by French thinker Jacques Derrida’s deconstruction philosophy. It describes seven criteria applicable to identifying and resolving the conflicts between copyright and human rights. Finally, this article applies this test through a case study, which involve the German implementation of notice-and-stay-down measures -which are highly demanded by the US entertainment industries and have been referred to in several UK intermediary cases to justify its outcome- in YouTube cases (Section VI). Thus, it offers concrete insights into how the model might assist in improving the legal reasoning of the ECtHR and the CJEU.

This choice is particularly made for two reasons. Firstly, for a while there has been a considerable increase in relying on human rights in decisions relating to copyright by the CJEU.²⁷ The CJEU has particularly developed the scope of the obligations of online intermediaries and the rights of users in relation to copyright enforcement with reference to and in the light of fundamental rights. As the German notice-and-stay-down measures means a national implementation of secondary EU law, it must be interpreted in the light of primary EU law, which includes fundamental rights. In effect, fundamental rights are an integral part of the EU’s constitutional order. Prior to their adoption within the EU Charter of Fundamental Rights (‘EUCFR’- ‘EU Charter’), the CJEU viewed fundamental rights as general principles of EU law stemming from the common constitutional traditions of the Member States.²⁸ Fundamental rights therefore is placed at the top of the EU’s hierarchy of norms along with the Treaties²⁹ and the general principles of EU law.³⁰ All fundamental rights of the EUCFR are of equal value and no hierarchy exists between them, their scope corresponds to that of the respective rights provided for by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).³¹ This relationship is also illustrated by regular references by the CJEU to judgments by the ECtHR. This is important since the ECtHR has a longer tradition of applying human rights to intellectual property rights.³²

Secondly and more specifically, this analysis will be quite relevant to the liability regime of intermediaries. This is a contentious and multi-dimensional issue in Europe. In spring 2019, the European Parliament and the Council of the EU approved a new Directive on Copyright in the Digital Single Market.³³ Article 17 of this is devoted to the liability of certain internet service providers for uploads of infringing material by users. This kind of intermediaries are not merely secondarily liable for the infringements committed by their users but directly liable. However, they may be exempted from liability if they fulfil the duties of care explicitly enshrined in Article 17(4). Thus, the adoption of the liability regime has been ensued by heated academic and political debate.³⁴

In addition, this discussion is pertinent to the pending cases before the CJEU concerning the liability of online platform operators such as YouTube.³⁵ In this case, on 16 July 2020, Advocate General (AG) Saugmandsgaard Øe delivered his much-anticipated opinion. The AG opines that, under the current law, online platform operators, such as YouTube and Uploaded, are not directly liable for the illegal uploading of protected works by their users. Copyright holders can however still seek injunctions against such platforms.³⁶

If there is a conflict between some certain right categories or regimes, this framework will enable to identify whether this is either an inter-regime (between two regimes) or an inter-rights (within human rights regime) conflict. However, because the scope of the research is limited to the specific conflict between copyright related human rights, any conclusions drawn as to the practicability of the model will be limited to that specific conflict.³⁷

2. Proportionality and Balancing

Today, most of the world’s constitutional courts employ a proportionality test when reviewing laws that implicate the protection of fundamental rights.³⁸ Many take their roots from the German constitutional law tradition. According to German understanding, balancing constitutes one part of the more comprehensive principle of proportionality.³⁹ This consists of the three sub-principles: those of suitability, necessity, and proportionality stricto sensu or ‘balancing’.⁴⁰

The German legal philosopher Robert Alexy, one of the most influential theoreticians of the proportionality paradigm, views the final principle of proportionality stricto sensu as a rule according to which ‘the greater the degree of non-satisfaction of or detriment to one principle, the greater the importance of satisfying the other.’⁴¹ For Alexy, ‘fundamental rights are mainly and foremost principles and not rules’: and as such, they are ‘optimization requirements’ and naturally subjected to a balancing and proportionality test.⁴² While necessity and suitability are concerned with what is factually possible, according to Alexy, balancing focuses instead on the legal possibilities.⁴³ Alexy calls this the ‘Law of Balancing.’⁴⁴ Thus, although proportionality, at least in its German conception, consists of three separate tests, balancing may be understood to constitute its essence, the heart of the legal optimisation discourse.⁴⁵

What is the proportionality? The proportionality test is an analytical medium to determine the permissibility of limiting certain rights. In Europe, the ECtHR and the CJEU use it to reconcile competing rights. These courts often resort to the proportionality test in the context of human rights as they are guaranteed under the ECHR and the EUCFR.⁴⁶

The proportionality test comprises of three steps. First, the test determines whether the contested measure is appropriate.⁴⁷ To meet this condition the measure must pursue a legitimate aim and must be suitable to achieve that aim.⁴⁸ Second, the measure must be necessary, in other words whether the aim could be achieved by less onerous means.⁴⁹ Third, a balancing exercise must be done, and this is also referred to as ‘proportionality strictu sensu’. At this stage, the various interests are balanced against each other.⁵⁰

Proportionality has become increasingly pertinent to copyright law. In this context, proportionality has almost become synonymous with the notion of a ‘fair balance’.⁵¹ In particular, where a case relates to various stakeholders such as copyright rightholders, users and intermediaries, proportionality and balancing have played a key role.⁵²

These tests have been used in attempts to address conflicts between copyright and other human rights, and to determine what is a legitimate and not excessive restriction on a human right. Examples of the use of balancing and proportionality tests can be seen from the decisions of the CJEU, which interprets the European copyright acquis with reference to them, in Promusicae,⁵³Scarlet Extended⁵⁴ and Netlog,⁵⁵Telekabel,⁵⁶Deckmyn,⁵⁷McFadden,⁵⁸Funke Medien, ⁵⁹Pelham⁶⁰ and Spiegel Online;⁶¹ of the ECtHR in Smith Kline,⁶²Aral,⁶³Anheuser-Busch,⁶⁴Ashby Donald,⁶⁵the Pirate Bay⁶⁶ and Akdeniz.⁶⁷

These courts have embraced different judicial techniques. The next session draws these different approaches.

The CJEU has reviewed secondary copyright legislation in the light of fundamental rights. In these cases, the CJEU has provided guidelines to the national courts and then leaves it ‘for the national court to ascertain’ the correct application of national law in the light of EU law, including the EU Charter. However, it has followed an unsteady line of reasoning. While in Promusicae, Deckmyn, Funke Medien and Spiegel Online it preferred self-restraint to hold that a ‘fair balance’ must be struck and deferred the actual proportionality test to national level, in Scarlet Extended, Netlog McFadden and Pelham although again short on guidelines, it entered into the substantive questions and provided a concrete answer with respect to whether a fair balance is struck or not. Although the court’s reasoning is not instructive, its definite rejection of the filtering mechanism under discussion is noteworthy. In Telekabel, and to some extend in McFadden, the CJEU then retreated to pass the implementation of the ‘fair balance’ test further down the line, not even to the national authorities, but to the intermediaries themselves.

In Promusicae, the case concerned a court order to require Internet intermediaries to disclose certain information about the alleged infringers, where the CJEU held that EU law, including Article 17 (2) of the EU Charter, does not require an obligation to disclose personal data in civil infringement proceedings.⁶⁸ In the cases of Scarlet Extended and Netlog, the CJEU held that the injunction to install the contested filtering systems ‘would result in a serious infringement of the freedom of the ISP concerned to conduct its business’ pursuant to Article 16 of the EU Charter, as it would require the ISP to install a complicated, costly, and permanent filtering system at its own expense,⁶⁹ although the protection of intellectual property is provided under Article 17 (2). In Telekabel, the case derived from an injunction requiring DNS blocking and blocking of a website’s current and future IP addresses, which provided downloading or streaming films of two production companies. In this case, the CJEU held that the contested injunction restricted the intermediary’s free use of resources and imposed a significant cost affecting the organisation of activities and require complex technical solutions, but that it was justified when balanced with intellectual property rights.⁷⁰

The central issue in McFadden was whether and to what extent a business providing free Wi-Fi to their customers can be held liable for copyright infringement which they committed. In the case the CJEU had to deal with the competing fundamental rights of a copyright-holder to intellectual property protection, the right of a service provider to conduct the business of supplying access to a communication network and the right to freedom of information of the recipients of that service.⁷¹ To strike a ‘fair balance’ between the competing human rights, it was held that a copyright-holder might be capable of obtaining an injunction to force a shop-owner to password protect his service and to prevent the relevant copyright infringement from occurring.⁷² However, in another wifi case, namely Bastei Lübbe, the CJEU concluded on that the owner of an internet connection used for copyright infringements through filesharing cannot be exonerated from liability simply by naming a family member who might have had access to that connection.⁷³ This meant that the wifi owner cannot invoke his fundamental right to private life to circumvent the possible enforcement of remedies against such infringements.

In Deckmyn, the CJEU defined the parody exception to copyright laws within Article 5(3)(k) of EU Directive 2001/29 (InfoSoc Directive).⁷⁴

In Funke Medien, Spiegel Online and Pelham the CJEU firmly denied the idea of complementing the list of Article 5 of the InfoSoc Directive with any external freedom of expression exception.⁷⁵ The CJEU has, however, accepted that freedom of expression might shape EU copyright law’s internal contours. In fact, limitations and exceptions have been seen as the prominent ground for reconciling intellectual property and human rights in the EU.⁷⁶ In Funke Medien, the CJEU attributed two roles to the freedom of expression. Firstly, it was used to shape copyright law’s subject-matter by excluding non-original works of a purely informative/factual nature from copyright protection. This was done through the idea/expression distinction and the requirement of originality.⁷⁷ Secondly, it was used to delineate what should be regarded as exceptions for the purposes of quotation and news reporting under Articles 5(3)(d) and 5(3)(c) of InfoSoc Directive.⁷⁸

In Pelham, the CJEU again used not only freedom of expression and but also freedom of the arts as an interpretation tool in two ways. Firstly, these human rights were relied upon to make sense of the exclusive right of reproduction.⁷⁹ The CJEU confirmed that the technique of sampling is a form of artistic expression, which is covered by freedom of the arts as protected in Article 13 of the Charter. Secondly, these human rights were used to define the boundaries of the quotation exception. The CJEU stated that the quotation exception would potentially cover recognizable, but ‘dialogic’ use of the original work subject to certain other conditions in the light of fundamental rights.⁸⁰ Thus, it was held in Pelham that, although seen within the framework of freedom of arts, sampling without permission could infringe a phonogram producer’s rights, subject to certain conditions.

In Spiegel Online, the meaning and scope of ‘news reporting’ and ‘quotation’ exceptions under EU copyright law were analysed in the light of freedom of expression. The news reporting exception was interpreted as ‘not requir[ing] the rightholder’s consent prior to the reproduction or communication to the public of a protected work.’⁸¹ An interpretation of the quotation exception, further, led the CJEU to rule that hyperlinking could be regarded as a form of quoting a work.⁸² Thus, the CJEU concluded that use of a protected work for the purpose of reporting current events and quotation does not, in principle, require authorization.

A notable aspect of the CJEU’s judgments in Funke Medien and Spiegel Online was its affirmation that the exceptions and limitations of Article 5 of the InfoSoc Directive confer rights on the users of works.⁸³ This is not the first time that the CJEU has referred to copyright exceptions as “users’ rights.”⁸⁴ By doing so, the CJEU clearly does not view exceptions and limitations as simple liberties or “privileges” recognised by the legislation in favour of users. It also seems that the CJEU has left a considerable room to the national courts in defining the boundaries of those exceptions that have not been harmonized, such as the exceptions for the purposes of quotation and news reporting.⁸⁵

In the aforementioned cases, the CJEU has interpreted the European copyright acquis with reference to proportionality.⁸⁶ Due to the nature of harmonization primarily by means of directives, the Court uses proportionality to establish the internal balance of copyright law. In this way it aims at helping national courts shape appropriate remedies to fight copyright infringements.

As Christina Angelopoulos observes, in the CJEU’s analysis ‘[b]alancing is ... revealed as the process through which non-absolute rights are shuffled against each other, so that they can settle into their natural resting place, which will change in each instance depending on the particular circumstances of the individual case.’⁸⁷ The judgments of the CJEU enlightened only the individual cases to which they applied. For all the dry repetition of the vague dictum of ‘fair balance’, no substantial judicial tools are provided to help identify where this balance should lie, or how to find it.⁸⁸ The CJEU invoked the fair balance as a ‘conclusory label’ to legitimise its judgements.⁸⁹ Moreover, the lack of consistent application undermines balancing itself. Even if it is clear what balancing is intended to achieve in the CJEU’s jurisprudence, little explanation is given on how this goal is reached.⁹⁰ As Jonathan Griffiths bluntly puts it: ‘“the concept of the ‘fair balance’ is, without further elucidation, vacuous and unhelpful.’⁹¹ Consequently, no common standard is discernible for all intermediaries concerning their rights and obligations, excepting those whose case bears identical features to those already tried in the twilight of the ‘fair balancing’ principle.⁹²