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Michael D. Birnhack. "Acknowledging the Conflict between Copyright Law and Freedom of Expression under the Human Rights Act" ENTERTAINMENT LAW REVIEW 2003 (2003): 24. Available at: http://works.bepress.com/michael_birnhack/9

Abstract

Unlike the legal discourse in the United States, the relationship between copyright law and freedom of expression has not been directly discussed in English case law until recently, nor has it been discussed extensively in the literature. The article examines the relationship of copyright law and freedom of expression in the United Kingdom in light of Ashdown v. Telegraph Group Ltd., a case recently decided by the Court of Appeal.

This claim, that there is some tension between the imperative of copyright law (thou shall not use another's expression, unless the use is fair) and the core of the right to freedom of expression, has been ignored for a variety of reasons. However, the recent enactment of the Human Rights Act 1998, which came into force in October 2000, and its (partial) incorporation of the European Convention of Human Rights, challenge this common wisdom. For the first time in English law, freedom of expression has gained an explicit status in the legal landscape. Consequently, Ashdown closely examined the relationship of copyright law and freedom of expression.

The court concluded that, as a general rule, freedom of expression should have no impact on the regular course of copyright litigation. But it also observed that "...rare circumstances can arise where the right of freedom of expression will come into conflict with the protection afforded by the Copyright Act...", and that "in these circumstances, ... the court is bound, ... to apply the [copyright] Act in a manner that accommodates the right of freedom of expression." This is a fascinating conclusion, especially in comparison to the consistent American judicial denial of any conflict between the two legal regimes.

This article proposes a framework within which to examine the intriguing intersection of copyright law and freedom of expression. The analysis draws on the American experience and on a constitutional inquiry and proposes a framework within which to examine the intriguing intersection of copyright law and freedom of expression. The Ashdown case serves as a leading example. The author distinguishes between an internal conflict within copyright law and an external conflict, on the constitutional level, and argues that in interpreting copyright law both points of view should be taken. The article further attributes the denial of a conflict to the failure to separate the two points of view.

Disciplines

Intellectual Property

Date of this Version

January 2008