Copyright and Freedom of Expression in Sweden and the European Union - The Conflict Between Two Fundamental Rights in the Information Society

Abstract: Copyright and the right to freedom of expression both constitute fundamental rights in the European Union (EU) and should be protected accordingly. But what is the closer relationship, de jure and de facto, between these two legal regimes in the information society? This is one of three questions examined in this thesis. The presentation gives at hand that, traditionally, the notion has been that copyright accommodates or even promotes freedom of expression and that the two rights are compatible. However, it is also demonstrated that the two rights inherit a built-in legal conflict and that copyright inevitably imposes a restriction on freedom of expression. It is illustrated that the conflict-oriented perspective has gained a great deal of attention recently as the friction between the two regimes has increased significantly. More specifically, the scope of copyright protection has become wider and stronger in recent time, while, at the same time, new web technology has made it much more common that people exercise their right to freedom of expression and information in a way that involves material protected by copyright. It is therefore concluded that the intersection between copyright and freedom of expression presents a potential de jure conflict, which de facto concerns a broad circle of people. The second question addressed in this thesis is therefore one of enhanced significance, namely whether the constitutional right to freedom of expression can be successfully invoked as an “external” defense argument in a case where the contested action cannot be subsumed under any of the exemptions existing “internally” within copyright law. The presentation gives at hand that, thus far, Swedish courts have for various reasons abstained from applying such solutions. However, the direct applicability of international and supranational human rights instruments in domestic courts may have altered the legal situation. Interestingly, not only the incorporation into national law of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) but also the enactment of a legally binding Charter of Fundamental Rights for the European Union (EU Charter) sheds new light on the issues at hand. To the extent clashes between copyright and freedom of expression occur within the scope of EU law, the question of whether a conflict can be solved by application of fundamental rights is no longer only a matter of whether higher-ranking national constitutional provisions should affect the application of domestic copyright rules, but also a question of whether a judicial review on the conformity of EU secondary law with EU primary law should be undertaken. It is therefore worth noting that the Court of Justice of the European Union (ECJ) in three recent landmark cases has held that national courts are required to strike a fair balance between the protection of copyright and the protection of other rights enshrined in the EU Charter, such as the right to freedom of expression, when applying national provisions stemming from EU Copyright Directives. These cases are thoroughly analyzed in this thesis. Thirdly, some consequences associated with the application of constitutional rights in copyright infringement cases are outlined. Arguments are presented as for why an increased application should be welcomed. However, it is simultaneously recognized that, for various reasons, the constitutional tool should be applied with caution.