Copyright as a Rule of Law Challenge

By Viktoria Kraetzig

This article is a shortened version of the re:constitution working paper, which was originally published by the Forum Transregionale Studien in 2023 and can be read here.

“Copyright is the uniquely legitimate offspring of censorship.”[1]

Introduction: Copying is Speaking

The copyright/free speech conflict is inherent in copyright law:[2] copyright grants its owners a limited monopoly on a work, which is also a communication content.[3] If third parties copy[4] the work, they might infringe copyright while invoking their fundamental right of free speech.[5] The conflict arises because free speech doctrine does not distinguish whether someone speaks with own or other people’s words, whether something has been said for the first, second or hundredth time: speaking is speaking. And so is copying.[6]

Freedom of speech is not only essential for the individual to express own thoughts but also has a fundamental function for democracy. It is the air to breathe for the public discourse in a democratic society governed by the rule of law.[7] As enshrined in Article 11 European Charter of Fundamental Rights (CFR) as well as Article 10 European Convention on Human Rights (ECHR) it is one of the very conditions for a democratic rule of law.[8] It is vital that the member of a democratic civil society can not only make free choices but are fully informed about ideas which be upon their political decisions. A functioning democracy lives from the expectation that citizens and politicians will come to “better” decisions through communicative exchange and free information. But speech is only free if one is allowed to speak not only about another’s work but with it.[9] Communicative exchange depends on interacting with copyright protected expressions of others for which one must be able to speak with them.

Because freedom of speech is such a high good in a democracy, the bar for its restriction is high. This is where copyright comes into play. For as long as it exists, it has been used to silence others – such cases are commonly known as “copyright silencing”[10]. Individuals or even the state use their exclusive right to suppress unpopular speech. They claim infringement of their exploitation rights even though they are obviously pursuing other interests that copyright does not protect. Because European copyright law provides only an exhaustive list of exceptions and limitations to authors’ exploitation rights and no balancing of fundamental rights takes place beyond them, if none of the exceptions apply, an injunction can be granted without taking freedom of speech into account at all. We are not yet living in an Orwellian nightmare in which copyright results in “memory holes in society’s knowledge”.[11] But censorious uses do happen and can chill the democratic discourse.[12] Copyright doctrine must take them seriously and acknowledge that fundamental rights unfold a horizontal effect in private law relationships.[13] It should already be made clear at this point: freedom of speech should by no means always prevail. Very often, a copy might not serve the discourse of a democratic society but the illegal usage of intellectual property. [14] While the value copying can have for speech interests for the copier as well as for the audience must be acknowledged,^[15] it must vice versa be recognized that not every copy serves free speech values.[16] Copying the latest blockbuster will very rarely be vitally important speech: downloading a James Bond film is convenient for the copier consuming but not beneficial for the public discourse, which is what freedom of speech is supposed to ensure.[17] However, the example also shows that there is no rule without exception: of course, excerpts from the latest James Bond can also be used to point out gender stereotypes in society. Most of the time, copying is just for fun and not of public interest – but it can be. Thus, in each individual case, the question must be asked: Does the copy merely serve to consume or indeed to communicate?[18] Is it just for fun or for an argument?

The problem is outlined: copying is speaking. And speaking is a fundamental right. How should EU copyright law deal with the abuse of this fundamental rights overlap by right holders? This article wants to provide a blueprint for dealing with a censorious copyright. For this purpose, firstly, it will be shown that the use of the exclusive right to censor is neither a national nor a new phenomenon. However, it reaches new dimensions in times of digitalization when copyright is suddenly everywhere: a new culture of communication has developed online that communicates more and more with the works of third parties. Copyright doctrine must reflect this digital structural change to live up to its own aspiration of not cutting excessively into people’s communication […]. Secondly, it will be outlined that such censorious use of copyright can happen because of copyright’s dogmatic structure. It contains safety valves which aim to solve the copyright/free speech conflict but all too often they fail. Moreover, it provides exclusive rights for the authors vis-à-vis mere privileges of users […]. Subsequently, the censorious use of copyright to suppress free speech will be tackled according to the Luxemburg approach to such cases. Following the case law of the Court of Justice of the European Union (CJEU), a case-by-case balancing within the interpretation of the codified exceptions and limitations of EU law must be undertaken. It may not be carried out as an ad hoc weighing but must be aligned with the omnipresent principle of proportionality […]. The article ends with a conclusion.

Censorious Use of Copyright

For as long as people speak, there have been other people who want to censor them. They often choose copyright law to do so […]. In the 15th century, copyright started of as a privilege to silence others.[19] For the purpose of religious and political surveillance, the granting of privileges was combined with censorship.[20] Nowadays, the majority of censorious cases will not involve “censorship” in a formal sense as this would only include state pre-censorship. In Germany, for example, only a pre-censorship by state authorities can fall under the formal concept of censorship in Article 5 (1) sentence 3 of the Basic Law.[21] Yet, censorship research operates with a whole range of censorship terminology, which in turn is subject to constant change.[22] The concept of censorship can therefore be understood much broader – up to an extended understanding in the sense of a “burden on communication”.[23] By any means, copyright law must prevent such censorious use of the exclusive right to suppress speech which is valuable in constitutional terms – in the digital age, more than ever […].

From Howard Hughes to the Duchess of Sussex

The censorious use of copyright law is a global phenomenon and not a new one. The first example shows a frequently occurring constellation, namely that a third party acquires exclusive rights to a copyright protected content to stop its publication: Aviation pioneer and tycoon Howard Hughes formed a company which acquired rights of use to press articles not to protect the economic value of them but to prevent the publication of a forthcoming Random House biography about himself. While the District Court held that the company had a valid copyright claim and preliminarily restrained the defendants from publishing and distributing the biography,[24] the Second Circuit Court held that the public interest shall prevail.[25] Another constellation to be found in Germany is that the state uses copyright law to suppress official documents. In this scenario, civil servants have created a work in the course of their official duties, and the copyright is owned by their employer: the state.[26] A well-known case of this category is the Funke Medien case, in which the German Ministry of Defence wanted to stop the publication of military situation reports on a mission in Afghanistan.[27] The reports were considered classified information. One might say: rightly so. Is there not a legitimate interest of the state to oppose the publication of such documents? Definitely – but not because of a violation of exploitation rights under copyright law. The state hardly wanted to exploit the military situation reports commercially. Speaking of the military, in the US, Navy Seals sued for copyright infringement against the publication of photos showing them abusing Iraqi prisoners.[28] There are also constellations in which the state wants to suppress documents because of a violation of exploitation rights that it previously had to release under the Freedom of Information Act.[29] Hence, by invoking its exclusive rights under copyright law, the state is deliberately undermining the freedom of information ordered by the Freedom of Information Act. You might call it the most abusive abuse of copyright.[30] Furthermore, very often, lawsuits are filed against the publication of letters for copyright infringement, although it is not their economic protection that is at stake but rather the privacy of the content that is ought to be protected. In the world of “droit d’auteur” and “Urheberrecht” such uses seem at least less censorious, because in these copyright regimes, not only commercial but personal rights are covered by copyright law. To give some examples: Independently of each other, the two befriended writers Ernest Hemingway and J.D. Salinger sued for copyright infringement against the publication of letters in biographies about them.[31] That such blocking of the publication of letters does not serve any economic interests, is obvious.[32] They are not to be published but kept under lock for personal reasons. The most recent case of a censorious use of copyright concerned again a personal letter which the author wanted to stop from being published: Meghan, the Duchess of Sussex, opposed the publication of a letter addressed to her father by the British press, inter alia, on the grounds of a copyright infringement.[33] This list could go on and on.[34] All these cases have one thing in common: the plaintiffs claim infringement of their exploitation rights under copyright law, although they are in fact not concerned with them. They are pursuing other interests, in the vast majority of cases such of a personality rights nature.[35] So, in most cases they are not pursuing ill-fitting motivations by any means, but quite understandable objectives as privacy or security interests. However, if the objectives pursued are understandable, this does not mean that they can be based on copyright law. It is not a vehicle for the vindication of privacy or security interests.[36] It can therefore be summarized: across national borders, the censorial use of copyright is characterized by the fact that copyright is used to achieve interests that lie outside its scope of protection and are therefore to be described as ill motivated from the perspective of copyright law.[37]

[…]

Click here to read the full paper.

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Footnotes

[1] Paul Goldstein, Copyright and the First Amendment, 70 COLUM. L. REV, 983 (1970).

[2] Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283, 285 (1996).

[3] ABRAHAM DRASSINOWER, WHAT’S WRONG WITH COPYING 8 (2015), arguing that copyright infringement is wrongful because it is compelled speech; IMMANUEL KANT, ON THE UNLAWFULNESS OF REPRINTING, 417 (1785), Primary Sources on Copyright (1450-1900), (eds. L. Bently & M. Kretschmer) https://www.copyrighthistory.org; see Goldstein, supra note 1, at 984: “a monopoly over expression”; VIKTORIA KRAETZIG, URHEBERRECHT ALS ZENSURRECHT [COPYRIGHT AS CENSORSHIP RIGHT] 7 (2022): „Kommunikationsregulierungsrecht“ [communication regulation law]; on copyright as a monopoly right, MARIETTA AUER, DER PRIVATRECHTLICHE DISKURS DER MODERNE [THE DISCOURSE ON PRIVATE LAW IN THE MODERN ERA] 156 (2014).

[4] In this article, the term „copy” or “copying” is used both for physically and non-physically uses of copyright subject matter.

[5] In U.S. copyright law, the debate about the conflict between copyright and the First Amendment was initiated much earlier than in Europe, groundbreaking Nimmer, Does Copyright Abridge First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. REV, 1180 (1970); see Goldstein, supra note 1; for Europe, see Christophe Geiger/Elena Izyumenko, Copyright on the Human Rights’ Trial: Redefining the Boundaries of Exclusivity Through Freedom of Expression, 45 IIC 316 (2014); see also Elena Izyumenko, The Freedom of Expression Contours of Copyright in the Digital Era: A European Perspective, 19 J. World Intellect. Prop. 115 (2016).

[6] Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535, 567 (2004).

[7]RUDOLF SMEND, STAATSRECHTLICHE ABHANDLUNGEN [CONSTITUTIONAL LAW DISCOURSES] 95 (1994); KONRAD HESSE, GRUNDZÜGE DES VERFASSUNGSRECHTS DER BUNDESREPUBLIK DEUTSCHLAND [FUNDAMENTALS OF THE CONSTITUTIONAL LAW OF THE FEDERAL REPUBLIC OF GERMANY] 68 (1995); JÜRGEN HABERMAS, FAKTIZITÄT UND GELTUNG [BETWEEN FACTS AND NORMS] 445 (1998).

[8]Case C-516/17, Spiegel Online GmbH v. Volker Beck, para. 72 (Jul. 29, 2019), https://curia.europa.eu; Case C-145/10, Eva-Maria Painer v. Standard Verlags GmbH, para. 113 (Dec. 01, 2011), https://curia.europa.eu; Case C-283/11, Sky Österreich GmbH v. Österreichischer Rundfunk (Jan. 22, 2013), https://curia.europa.eu; The Sunday Times v. The United Kingdom, App. No.6538/74, para. 65 (Apr. 26, 1979), https://hudoc.echr.coe.int; Lingens v. Austria, App. No. 9815/82, para. 41 (Jul. 8, 1986), https://hudoc.echr.coe.int; Castells v. Spain, App. No. 11798/85, para. 42 (Apr. 23, 1992), https://hudoc.echr.coe.int; Godwin v. The United Kingdom, App. No. 17488/90, para. 39 (Mar. 27, 1996), https://hudoc.echr.coe.int.

[9] Critically, see Christopher L. Eisgruber, Censorship, Copyright, and Free Speech: Some tentative skepticism about the campaign to impose First Amendment restrictions on copyright law, 2 J. ON TELECOMM. & HIGH TECH. L. 17, 22 (2003).

[10] Cathay Y. N. Smith, Copyright Silencing, 106 CLR Online, 71 (2021) with further references.

[11] Eric Goldman/Jessica Silbey, Copyright’s Memory Hole, 4 BYU Law Rev. 929 (2019).

[12] John Tehranian, The New ©ensorship, 101 Iowa Law Rev. 101 (2015); David McGowan, Why the First Amendment Cannot Dictate Copyright Policy, 65 U. PITT. L. REV. 281 (2004).

[13] C-275/06, Promusicae, para. 68 (Jan. 29, 2008), https://curia.europa.eu (groundbreaking for the fundamental rights of the CFR).

[14] Harper & Row v. Nation Enterprises, 471 U.S. 539, 596 (1985) with reference to Pacific & Southern Co. v. Duncan, 744 1499–1500 (1984): “Any copyright infringer may claim to benefit the public by increasing public access to the copyrighted work“.

[15] Eugene Volokh, Freedom of Speech and the Right of Publicity, 40 HOUS. L. REV 697, 726 (2003).

[16] See Tushnet, supra note 6, at 590.

[17]Viktoria Kraetzig, Netzsperren – Eigentumsschutz oder Zensur? [DNS blocking – property protection or censorship?], 3 ZUM 181, 186 (2022).

[18] Jannis Lennartz, Digitale Filter zwischen Konsum und Kommunikation [Digital filters between consuming and communicating], EuGRZ 482, 487 (2022), who argues that the exercise of the fundamental right to free speech must be seen in the context of its use [„Verwendungszusammenhang“].

[19] See Tehranian, supra note 12, at 148; for a “brief history of the birth of exclusivity, see Konrad Gliściński, Reclaim the state: public interest in copyright and Modern Monetary Theory, 3 internet&sociedade 89, 91 (2022).

[20] RONAN DEAZLEY, COMMENTARY ON THE STATIONERS’ ROYAL CHARTER 1557 (2008), in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org; CYNDIA SUSAN CLEGG, PRESS CENSORSHIP IN ELIZABETHAN ENGLAND, 1997; see also W.S. Holdsworth, Press control and copyright in the 16th and 17th centuries, Yale L.J. 841 (1920).

[21] Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Nov. 27, 1990, NEUE JURISTISCHE WOCHE [NJW] 1471, 1475.

[22] BODO PLACHTA, ZENSUR 13 et seq. (2006).

[23] See Plachta, supra note 21, at 18 citing KLAUS PETERSEN, ZENSUR IN DER WEIMARER REPUBLIK 4 (1995).

[24] Rosemont Enters., Inc. v. Random House, Inc., 256 F. Supp. 55, 58 (S.D.N.Y. 1966).

[25] Rosemont Enters., Inc. v. Random House, Inc., 366 F.2d 303 2d Cir. (1966): „The public interest (in the free dissemination of information about Howard Hughes) should prevail over the possible damage to the copyright owner“; see also Jeanne C. Fromer, Should the law care why intellectual property rights have been asserted?, 53 Hous. L. Rev. 549, 557 (2015); see Goldstein, supra note 1, at 985.

[26] It is to be assumed that the civil servant has at least implicitly granted the employer all rights of use on the copyright protected subject matter, see Sec. 43 German Copyright Act.

[27] Bundesgerichtshof [BGH] [Federal Supreme Court], April 30, 2020, 35 NEUE JURISTISCHE WOCHENSCHRIFT [NJW] 2547; Case C-469/17, Funke Medien v. BRD, (Jul. 29, 2019), https://curia.europa.eu.

[28] Four Navy SEALS v. Associated Press, 413 F.Supp.2d 1136, 1141–42 (S.D. Cal. 2005); See Tehranian, supra note 12, at 126 et seq.

[29] Landgericht Köln [LG Köln], Nov. 12, 2020, Zeitschrift für Urheber- und Medienrecht Rechtsprechungsdienst [ZUM-RD] 43; Landgericht Köln [LG Köln], Mar. 03, 2019, Zeitschrift für IT-Recht und Recht der Digitalisierung [MMR] 546; Kammergericht Berlin [KG Berlin], Mar. 12, 2014, Zeitschrift für Urheber- und Medienrecht [ZUM] 969.

[30] Viktoria Kraetzig, Zensururheberrecht [censorship copyright], 23 GRUR 1707, 1708 (2022).

[31] Hemingway’s widow and his estate sued against the author of the biography “Papa Hemingway” which contained substantial excerpts from conversations between him and the defendant, Estate of Hemingway v. Random House, Inc., 53 Misc. 2d 462, 470, 279 N.Y.S.2d 51, 6 (see Note, Copyright, Right to Common Law Copyright in Conversations of a Decedent, 67 COLUM. L. REV. 366 (1967).; J.D. Salinger sued under copyright law against the publication of letters in a biography, among others to Ernest Hemingway: in the first instance, the claim was dismissed, see Salinger v. Random House, Inc, 650 F. Supp. 413, 426 (S.D.N.Y. 1986): “The copyright law does not give him protection against that form of injury”; but the second instance upheld it, see Salinger, 811 F.2d at 100.

[32] See Goldstein, supra note 1, at 985.

[33] HRH The Duchess of Sussex v. Associated Newspapers, [2021] EWHC 273 (Ch).

[34] For more examples from the EU see Kraetzig, supra note 3; for examples from the U.S., see Smith, supra note 10, at 72 et seq.; see Fromer, supra note 24, at 557; Neil Weinstock Netanel, Locating Copyright within the First Amendment Skein, 54 Stanford Law Review 1, 15 et seq. (2001).

[35] Margaret McKeown, Censorship in the Guise of Authorship: Harmonizing Copyright and the First Amendment, 15 Chi. -Kent J. Intell. Prop. 1 (2016): “[…] copyright is becoming a go-to tool to remedy invasions of privacy and other harms.”

[36] See McKeown, supra note 34, at 16.

[37] There are also other IP rights that are used for purposes that are unrelated to the IP system, most notably patents (“patent trolls”), see Fromer, supra note 24.

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About the Author

Dr. Viktoria Kraetzig is Postdoc (Habilitandin) at Johann Wolfgang Goethe-University, Frankfurt am Main. She completed her dissertation on “Copyright Law as Censorship Law” summa cum laude in 2021. She is a specialist for copyright law. Viktoria Kraetzig also writes regularly for the Frankfurter Allgemeine Zeitung, one of the largest daily newspapers of Germany. 

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Citation: Viktoria Kraetzig, Copyright as a Rule of Law Challenge, in: TRAFO – Blog for Transregional Research, 12.09.2024, https://trafo.hypotheses.org/52857

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