While the ECtHR decision represents a pyrrhic victory for the applicant, given that the ECtHR granted him merely a fraction of the damages sought, the ECtHR ruled in favor of him on the substance of the matter. The decision is particularly noteworthy because the ECtHR interfered with and ruled against the application and interpretation of national laws by the domestic courts, albeit its jurisdiction is limited in that regard. The ECtHR decision not only reaffirms that intellectual property infringements are a deprivation of human rights, but illustrates the interplay between the human rights framework and intellectual property rights.
The protection of intellectual property rights by the ECHRT
Art. 1 of Protocol No. 1 to the ECHR provides that every person is entitled to the peaceful enjoyment of his possessions. While the ECHR does not explicitly mention intellectual property, it has long been acknowledged that intellectual property rights fall under the broad concept of "possessions" within the meaning of Art. 1 of Protocol No. 1 to the ECHR.
Pursuant to Art. 1 of Protocol No. 1 to the ECHR, states have a positive obligation to take the necessary measures to protect intellectual property rights also in relation to disputes between private parties. States must ensure that property rights are sufficiently protected by law and that adequate remedies are provided, including for claiming damages in respect of any loss sustained. The required measures can therefore be preventive or remedial. As to possible preventive measures, the margin of appreciation available to the legislature in implementing social and economic policies is a wide one, especially in a situation where the state has to have regard to competing private interests. As regards remedial measures, states are under an obligation to afford judicial procedures that offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any disputes between private persons.
The ECtHR's jurisdiction to verify that domestic law has been correctly interpreted and applied is limited to ensuring that the decisions of those courts are not arbitrary or otherwise manifestly unreasonable. It is not the ECtHR's function to take the place of the national courts. However, as the following analysis of the decision Safarov v. Azerbaijan shows, the ECtHR, makes use of its competence and does not shy away from reviewing the domestic courts' decisions for that purpose.
The decision of the ECTHR
The applicant, Mr. Rafig Firuz oglu Safarov, is the author of a book entitled "Changes in the ethnic composition of the people of Irevan Governorate in the nineteenth and twentieth centuries", which was published in physical format in 2009. In 2010, the Irali Public Union, a youth NGO, published an electronic version of the applicant's book on the website of one of their projects.
The applicant became aware of this and requested that the book be removed from the website. This request was fulfilled by the Irali Public Union. Nevertheless, the applicant subsequently lodged a civil claim against the Irali Public Union, relying on the Azerbaijani Law on Copyright and Related Rights. He complained that the Irali Public Union had reproduced a digital version of his book and published it on its website without his authorization or paying him any royalties. He claimed pecuniary and non-pecuniary damages.
The Azerbaijani courts in various instances all dismissed the applicant's claims with different justifications. The applicant appealed the decision of the last instance to the ECtHR arguing a violation of Article 1 of Protocol No. 1 to the ECHR by Azerbaijan.
The ECtHR reiterated that protection of intellectual property rights, including the protection of copyright, falls within the scope of Article 1 of Protocol No. 1 to the ECHR. It found that the reproduction of the applicant's book and its online publication, without his consent, affected his right to peaceful enjoyment of his possessions as guaranteed by Article 1 of Protocol No. 1 to the ECHR.
In the present case, the applicant did not allege that the rights of authors were not sufficiently protected by Azerbaijani law but that the application of the existing law by the domestic courts was unlawful and arbitrary. Thus, under domestic law, as a general rule, authorization by the author and payment of royalties was required in order to use a copyright protected work. Domestic courts, however, rejected the applicants claims relying on the following articles of the Law on Copyrights and Related Rights ("Copyright Act") which provided for exceptions to this general rule:
- The domestic courts relied on Article 17.1 of the Copyright Act, providing that the reproduction of a lawfully published work by a physical person is authorized without the author's consent or payment of royalties, for exclusively personal purposes. However, Irali Public Union had not used the applicant's book for "exclusively personal purposes" but made it available online for an unlimited number of readers. Moreover, this exceptions only applies if a work is not reproduced in its entirety, which was the case with the applicant's book.
- Further, the domestic courts relied on Article 18 of the Copyright Act, allowing libraries, archives and educational institutions to reproduce works without authorization in specific cases. However, they did not explain why the relevant website would qualify as a library and which of the specific cases mentioned in Article 18 of the Copyright Act would justify the reproduction without authorization. In view of the ECtHR, seeing that Irali Public Union made the applicant's book freely available online and therefore - practically to a world-wide audience, not to visitors of a library building, elaborate reasoning by the domestic courts would have been needed to justify the application of Article 18 of the Copyright Act.
- Lastly, the domestic courts also referred to Article 15.30 of the Copyright Act setting out the rule of exhaustion of the right to distribution. However, in the present case, the applicant had never authorized the reproduction and communication of the book to the public in a digital form, but only published physical copies. The rule of exhaustion could therefore not justify the reproduction of the applicant's book in a new, digital form and its online publication without his consent.
The Court concluded that the application of the Azerbaijani Copyright Act by the domestic courts was unlawful and arbitrary since they failed to provide reasons establishing that relevant provisions in national law could constitute legal grounds for the dismissal of the applicant's claims against the Irali Public Union for damages for the violation of his copyrights. The ECtHR, therefore, held that Azerbaijan violated Article 1 of Protocol No. 1 to the ECHR and awarded the applicant EUR 5,000 of damages.
This decision of the ECtHR shows that states' domestic legal framework for the protection of intellectual property must not only adhere to the various international treaties in the area of intellectual property but also to the human right to peaceful enjoyment of one's own possessions, as it is enshrined in Article 1 of Protocol No. 1 to the ECHR (as well as in many national constitutions). The ECHR, therefore, grants owners of intellectual property rights an additional level of judicial protection against deprivation of their rights in member states of the Council of Europe. This can for example be important in cases in which states, for political reasons, decide to deprive foreign owners of intellectual property rights of effective remedies to enforce their rights.
However, it is important to remember that any complaint to the ECtHR is only admissible pursuant to Article 35 para. 1 of the ECHR if the right to peaceful enjoyment of one's own possessions has been raised "at least in substance" in the domestic proceedings. This means that if the applicant has not explicitly relied on Article 1 of Protocol No. 1 to the ECHR, he or she must have raised arguments to the same or like effect on the basis of domestic law so that domestic courts had the opportunity to redress the alleged breach (see for further details the Practical Guide on Admissibility Criteria of the ECtHR). It is therefore important for owners of intellectual property rights to consider this when drafting submissions to domestic courts, otherwise they risk that possible complaints to the ECtHR will be declared inadmissible.