Last Updated on September 1, 2022 by LawEuro
Information Note on the Court’s case-law 265
August-September 2022
Safarov v. Azerbaijan – 885/12
Judgment 1.9.2022 [Section V]
Article 1 of Protocol No. 1
Positive obligations
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Unreasoned dismissal of copyright infringement claim against a private party, who published a digital version of the applicant’s book online, without authorisation or paying royalties: violation
Facts – The applicant is the author of a book which was published online on the website of an NGO (the defendant). The book has since been removed from the website. The applicant lodged an unsuccessful civil claim with the domestic courts, arguing under domestic copyright law that the defendant had reproduced a digital version of his book and published it on its website without his authorisation or paying him any royalties. He appealed up to the Supreme Court without success.
Law – Article 1 of Protocol No. 1: The reproduction of the applicant’s book and its online publication, without his consent, had affected his right to peaceful enjoyment of his possessions. Although the dispute in the present case had been between private parties, the State had a positive obligation to take necessary measures to protect the right to property.
The applicant had not claimed that the rights of authors had not been sufficiently protected by domestic law, but that the application of existing law by the courts in his case had been unlawful and arbitrary. Under domestic law, as a general rule, authorisation by the author and payment of royalties had been required in order to use his or her work. However, the domestic courts had justified the defendant’s actions relying mainly on several domestic law articles providing for exceptions to that general rule, namely:
– Reproduction for exclusively personal purposes: in the present case, however, the defendant had been a legal person and had not used the applicant’s book exclusively for personal purposes but had made it available online for an unlimited number of readers. In addition, that domestic law exemption did not apply to reproduction of books in their entirety, and the domestic courts had not established that the applicant’s book had not been reproduced in its entirety.
– Reproduction by archives and education institutions in specific cases: the Supreme Court had not elaborated on the applicant’s argument that the defendant did not belong to any of the said categories, noting only that his book had been published under the library section of the defendant’s website with the purpose to provide information on the country’s history. Similarly, the Government submitted that there had been no commercial purpose. While the lack of such a purpose had been relevant in application of the relevant domestic provision, it had not been the only element to be considered. It had been incumbent on the domestic courts to interpret the relevant provision as covering the online services offered by the defendant under the notion of “libraries”. Even assuming that those services could be regarded as covered by that notion, the courts had failed to mention which specific case, provided for under the domestic provision, could justify the book’s reproduction without authorisation. Since the defendant had 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 courts had been needed to justify the application of that domestic provision.
– Exhaustion of right to distribution: The rule on exhaustion of right to distribution had referred to lawfully published and fixed copies of works put into circulation by sale as tangible objects. While the applicant had published his book and physical copies had been available in the book market, nothing suggested that he had ever authorised its reproduction and communication to the public in a digital form. The Supreme Court had not explained why it had considered that domestic provision relevant to the circumstances of the case.
Overall, the domestic courts had failed to provide reasons establishing that the above-mentioned domestic law exceptions could constitute legal grounds for the situation at hand. The respondent State had therefore failed to discharge its positive obligation.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of both pecuniary and non-pecuniary damage.
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