On 10 January 2013, the European Court of Human Rights (ECHR) issued a judgment in which it recognises that restrictions on the use of copyrighted materials and copyright sanctions might constitute a violation of the right to freedom of expression.

The case before the ECHR involved Mr. Olivier Claisse, a French fashion photographer, who took photos of a fashion show and subsequently submitted them to Mr. Robert Ashby Donald and Mr. Moraes Madeira, two people who ran a fashion website called Viewfinder. Within hours after the fashion show photos were made, they were published on the Viewfinder website.

Since the photos depicted the new collection of several renowned fashion designers, the French federation of fashion filed a criminal complaint against Viewfinder, alleging that the distribution of those photos constitutes a violation of the fashion designer’s copyright.

In appeal proceedings, the Court of Appeal of Paris concluded that the dissemination of photos that depicted copyrighted works does constitute copyright violation because the defendants had not obtained the designer’s prior consent for the dissemination of those photos. The Court consequently fined the defendants.

The defendants then petitioned for an appeal before the French Supreme Court, the Cour de cassation. In cassation proceedings, the defendants argued that the Court of Appeal of Paris failed to take into account Article L. 122-5 9° of the French Intellectual Property Code. This Article states that an individual is entitled to reproduce or disseminate copyrighted works in whole or in part for the sole purpose of news reporting, but only on condition that the name of the author of the copyrighted work is clearly mentioned. The French Supreme Court dismissed the claim of the defendants holding that their claim was “inoperative”.

Dissatisfied with the Supreme Court’s decision, the defendants continued to pursue the case by seeking a ruling from the ECHR, arguing that, among other things, the prohibition to reproduce or disseminate copyrighted material without the author’s prior consent constitutes a violation of their freedom of expression enshrined in Article 10 of the European Convention on Human Rights.

The ECHR recognised that even though the photographs were published with a lucrative aim on a fashion website, their publication on the Internet nevertheless falls within the scope of the right to freedom of expression. Therefore, any restriction on exercising this right could be valid if it (i) pursues a legitimate aim, (ii) is prescribed by law, and (iii) is necessary in a democratic society.

In applying these criteria, the ECHR found that (i) the restriction on the right to freedom of expression in this case at hand was prescribed by law according to the French Intellectual Property Code, and (ii) pursued a legitimate aim since it aimed at protecting the rights of copyright owners. Concerning the third criterion, the ECHR held that the restriction imposed by the French Intellectual Property Code was proportionate because there was no pressing social need to publish the pictures on the Viewfinder website.

In light of the foregoing, the ECHR concluded that although copyright restrictions might constitute a limit on the freedom of expression, the restrictions imposed by the French Intellectual property code do not violate the right to freedom of expression in the case at hand. (LDA)

The case can be found on http://hudoc.echr.coe.int/