Book review: Copyright and Fundamental Rights in the Digital Age

Copyright and Fundamental Rights in the Digital Age: A Comparative Analysis in Search of a Common Constitutional Ground, edited by Oreste Pollicino, Giovanni Maria Riccio and Marco Bassini, explores the relationship between copyright and fundamental rights in light of the digital single market strategy. It argues that the battle between copyright and copyright and freedom of expression is far from settled. In the introduction, by Oreste Pollicino, Giovanni Maria Riccio and Marco Bassini, it is recognised that whilst the internet offers new channels and opportunities for circulation of copyright, it nevertheless brings new threats for rightsholders. Furthermore, they state that it is no coincidence that the provisions on internet service provider liability are regarded as free speech rules. Within that context, the book sets out to revisit a critical understanding of some of the underlying legal issues in the relationship between copyright and other freedoms, through a comparative and European perspective. 

This volume departs from the assumption that the rise in the internet and the spread of digital technologies led to a reshaping of the understanding of this relationship, particularly as far as freedom of expression is concerned.

 

It does this in 8 further chapters, authored by a range of established and emerging academics (which is a theme we are gladly seeing across many publishers edited collections). Which this Kat will discuss in turn below:

Chapter 2 is titled ‘Speaking truth to power’: copyright and the control of speech. Fiona Macmillan, Professor at Birkbeck, University of London, investigates the proposition that copyright should be understood as a speech right, in particular considering the impact of the public and private law divide. Whilst we have perhaps seen many discussions of the impact of freedom of speech on copyright, this chapter inverts the analysis to consider the social value of copyright and its relation to the values of free speech. Taking account of three justification for copyright 1) as a property right 2) personal/cultural rights and 3) as a means to encourage cultural innovation and diffusion of that innovation; Macmillian concludes that copyright is in itself a fundamental right and focusing on copyright as a speech right allows scope for reconciliation with freedom of speech. It is argued that distinguishing from there the types of competing speech such as commercial or political. For this Kat, the arguments in this chapter are compelling. Often when balancing freedom of speech and copyright it can feel like apples and pears but taking Macmillian’s approach solves that problem and contextualises the question. 

Chapter 3, Copyright strengthened by the Court of Justice interpretation of Article 17(2) of the EU Charter of Fundamental Rights is contributed by Alain Strowel, Professor at UCLouvain and the University of Saint-Louis, Brussels. Building on the theory set out in the previous chapter, this analysis focuses on Article 17 of the EU Charter, which for the first time expressly recognised intellectual property in a legally binding international instrument on fundamental rights. Strowel concludes that on the whole, Article 17(2) has strengthened intellectual property rights, both in terms of substance, scope and enforcement. 

Chapter 4 is titled: Regulating with rights proportionality? Copyright, fundamental rights and internet in the case law of the Court of Justice of the European Union, by Tuomas Mylly, Chair at University of Turku. This chapter evaluates the CJEU’s application of a fair balance, or proportionality, and critiques the key judgements that involve fundamental rights in the context of copyright and the internet. It suggests that these decisions have actively changed the trajectories by affecting the fabric of well-established and widespread technological, economic and social practices, such as linking. Mylly argues that these judgements demonstrate that the CJEU’s application of proportionality in fact worsens the inherent bias within copyright to incentivise intellectual goods that generate the most appropriable value in consumer markets. 

Chapter 5 turns to analyse the case law of the European Court of Human Rights. Oleg Soldatov, PhD researcher at Bocconi University in Milan considers Copyright and fundamental rights in European Court of Human Rights case law. Soldatov suggests that the attitude of the Court acknowledges a wider margin of appreciation for national authorities for purposes of protecting intellectual property rights.

Comparing cats and cantaloupe
Image: Andrea Schaffer

Chapter 6 is titled: Cultural rights, cultural diversity and the EU’s copyright regime: the battlefield of exceptions and limitations to protected content, by Evangelia Psychogiopoulou, Senior Research Fellow at the Hellenic Foundation for European and Foreign Policy. This chapter explores copyright exceptions and limitations, arguing that the Digital Single Market Directive could operate as a measure to support access to cultural content alongside support for creativity and cultural investments and thus promotes cultural diversity. 

In Chapter 7, The influence of the Court of Justice of the European Union on national courts in copyright cases, Giovanni Maria Riccio, Professor at University of Salermo, begins by asking “is there really a European copyright law?” Looking at the recent stances on the role of digital platforms that host copyright content, it is argued that the judgements handed down by the CJEU are vague and therefore prevent the national courts from taking advantage of a certain degree of harmonisation and uniformity. The author concludes with a hope that the CKEU will provide clarity in the future in the form of technical criteria to achieve real harmonisation. 

Chapter 8 asks- US and EU: diverging or intertwined paths? By Maria Lillà Montagnani, Associate Professor at Bocconi University and Alina Trapova, PhD candidate at Bocconi University. In addressing this question, the authors consider the extent to which the US and EU courts influence each other in striking a balance between copyright and fundamental rights. As such, they argue that whilst the two systems appear similar in theory, in practice the US places stricter reliance on the internal copyright safeguards. 

Lastly, chapter 9 Is titled: From private enforcement to public enforcement. Copyright enforcement in the digital age: a comparative overview, by Giorgio Giannone Codiglione and Marco Bassini. This chapter undertakes a comparative analysis of private and public enforcement, in particular the French HADOPI law and the Italian regulation adopted by AGCOM, proposing lessons that each could learn from the other.

The ambition of this book is to try to resolve some of the...unresolved issues in the relationship between copyright and other rights and freedoms through a comparative and European perspective.

This title was nominated for the IPKat book of the year awards!

It would certainly appeal to those researching in the fields of copyright and fundamental rights, particularly European and comparative perspectives. More broadly those interested in the application of copyright in the digital age, and in particular the book sets the scene for the transposition of the Digital Single Market Directive. 

ISBN: 978 1 78811 387 8 

Publisher: Edward Elgar

Extent: 288 pp

Hardback: £95

ebook: £25