Refusal of domestic authorities to enforce copyright breaches human rights, says ECtHR

Is a country’s failure to ensure the protection of IP rights a breach of human rights, more precisely the right to the peaceful enjoyment of one’s own possessions under Article 1 of Protocol No. 1 to the European Convention of Human Rights (ECHR)?

This is what the European Court of Human Rights (ECtHR) had been asked to consider in Safarov v Azerbaijan (Application no. 885/12)

Earlier this week, the Court released its judgment answering the question above in the affirmative.

Preventing the peaceful enjoyment
of one's own bed is
among Kats' top missions in life ...

Let’s see more in detail what happened.


Mr Safarov is the author of a book that was published in 2009. The following year, a youth NGO published an electronic version of that book on its website without the author’s permission.

The copy was subsequently removed from the NGO’s website at Safarov’s request. Nonetheless, the latter lodged a civil action against the former seeking the award of both pecuniary and non-pecuniary damages.

Safarov’s action was dismissed at all levels: first instance, court of appeal, and Supreme Court. The domestic courts considered that the acts at issue would be covered by exceptions (according to Safarov, beyond the catalogue of allowed exceptions and limitations under national law). The Supreme Court further noted that, by publishing his book, Safarov had exercised his right to communicate the work [thus possibly implying an exhaustion thereof] and that the NGO’s intention was to provide information about the history of Azerbaijan.

Safarov attempted one last card: he brought an action before the ECtHR against the state of Azerbaijan. He claimed that that country’s failure to ensure the peaceful enjoyment of his possessions, that is: his copyright due to the unauthorized reproduction and online publication of his work, breached his human right to the peaceful enjoyment of his IP. 

Importantly, Safarov’s action did not question the appropriateness of Azerbaijan’s copyright system, but rather the application thereof by domestic courts.

The judgment

The ECtHR recalled at the outset that:
  1. There is no doubt that the protection of IP qualifies for the application of Article 1 of Protocol No. 1;
  2. The unauthorized undertaking of acts restricted by an IP right – in this case: reproduction and online publication of the Applicant’s book – affects one’s own peaceful enjoyment of their possessions; and
  3. The State has a positive obligation to take necessary measures to protect the right to property; such measures can be preventive or remedial.
The ECtHR then reviewed national law and found that none of the copyright exceptions available therein, notably those considered by the national courts (private copying, and libraries and archives) in the background proceedings, would be applicable.

... unless of course it's the Kat's turn in bed!

The Court further held that exhaustion under Article 6 of the WIPO Copyright Treaty only applies to lawfully published and fixed copies of works which are put into circulation by sale as tangible objects. Exhaustion does not come into consideration when there is the reproduction of a work in a new, digital, form and its online publication without the rightholder’s consent.

In sum: nothing in domestic law would shield the defendant NGO from liability for copyright infringement. This means that “the domestic courts failed to provide reasons establishing that the above-mentioned provisions of the Law on Copyright, relied on by them, could constitute legal grounds for the situation at hand”. As a result, “The respondent State [...] failed to discharge its positive obligation under Article 1 of Protocol No. 1 to protect intellectual property notably through effective remedial measures.”


The first thing to note is that this application was lodged in 2011. It looks like it took over 10 years to decide ... If that was not enough, the damages awarded by the ECtHR were also significantly lower than what Safarov had requested: EUR 5,000 vs over EUR 128,000. If there is any good news in all this is that the Applicant was told that, indeed, he was right 😜

Aside from the specific situation of the Applicant and the clear holding that unavailability of adequate measures to ensure the peaceful enjoyment of IP rights (broadly intended, not just copyright), this ECtHR judgment is of broader relevance to copyright in two key respects.

First, because it reiterates once again that how a system of exceptions and limitations is designed does indeed matter. In the present case, the ECtHR reviewed the provisions considered by the national courts and concluded that none of those would justify a finding of non-liability.

Secondly, the judgment also tells us something about digital exhaustion/first sale doctrine. As readers will know, this has been a big issue at least both in Europe (Tom Kabinet; IPKat posts here) and in the US (ReDigi) over the past several years. By providing an authoritative interpretation of Article 6 of the WIPO Copyright Treaty, the ECtHR held that exhaustion only applies to works or copies thereof that are put into circulation by sale as tangible objects. This conclusion appears to rule out the very existence of a ‘digital’ exhaustion/first sale doctrine under international law.

Refusal of domestic authorities to enforce copyright breaches human rights, says ECtHR  Refusal of domestic authorities to enforce copyright breaches human rights, says ECtHR Reviewed by Eleonora Rosati on Sunday, September 04, 2022 Rating: 5


  1. Dear Eleonora, I partially disagree with the final conclusion regarding exhaustion. No doubt, WCT Art 6 and the Agreed Statement to it is quite restrictive regarding exhaustion, and now the ECHR seems to agree with this approach. This is right under the existing norms. At the same time, this case is not a typical "digital exhaustion" scenario - even more, it is not an exhaustion scenario at all. Exhaustion - at least in the EU - has never allowed for the dissemination of digitized paper books where the digitization was made by a third party. This scenario is much more like a digital Art & Allposters case. In my understanding, digital exhaustion covers the issue of the "resale" of the "original copies" of digital contents initially disseminated ("sold"?) online. In any case, thanks for the post, this is a really interesting case.

    1. I agree with the above position. It is also worth noting in general that Article 6 of the WCT and TRIPS do not bind member states to adopt any exhaustion at all, and therefore it must be explicitly provided by national law. In addition, international rules are de minimis rules, so I personally agree with the CJEU's position that the EU has the right to extend exhaustion to electronic copies of works as well (which seems even necessary these days looking at the development of the blockchain and NFTs market), assuming that this approach meets the requirements of the three-step test (which seems to be met from the very premise of what exhaustion is all about).

    2. This response is great, thanks. Maybe one thing to add: according to TRIPS, exhaustion is not bound by the three-step test. For sure, this might lead to a paradox, if we agree that the international norms do not bind the EU in extending the scope of exhaustion to the digital domain. In this case, the EU might still be able to require the compliance with the three-step test (in this case interpreted in line with the CJEU case law rather than the TRIPS DS bodies). [For some crazy reason, I could not log in to use my Google account to comment, but the original comment and this response came from this dude, Peter Mezei.]

  2. "lodged in 2011. It looks like it took over 10 years to decide ... "

    For clarity, most of that time it was just sitting in a very long queue at the ECtHR

    Mike D


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